01997165_r
05-18-2001
Michael D. Colton, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.
Michael D. Colton v. Department of the Army
01997165
May 18, 2001
.
Michael D. Colton,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01997165
Agency No. BGASFO9807I0360
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a) (1) and (2),
for failure to state a claim and on the alternative grounds of untimely
EEO Counselor contact.
The record discloses that complainant contacted an EEO Counselor on May 4,
1999, and alleged that he was discriminated against in reprisal for prior
protected activity. Complainant alleged that an agency rater had agreed
to grant complete relief to his grievance regarding his performance
appraisal, but that total relief was not granted.<1> Specifically,
complainant stated that the rating itself was changed, but that the
negative comments on the rating were not changed. Thereafter, complainant
filed a formal EEO complaint that is the subject of the instant appeal.
The agency dismissed the complaint on the grounds of untimely EEO
Counselor contact. The agency also dismissed the complaint for failure to
state a claim. The agency specifically stated that the matter relating
to the grievance does not render complainant aggrieved, that it does not
constitute an adverse employment action, and that it does not constitute
a material change in complainant's working conditions.
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another forums's proceeding.
See Kleinman v. USPS, EEOC Request No. 05940585 (September 22, 1994).
A fair reading of the instant complaint reflects that complainant is
expressing dissatisfaction with the grievance decision of February 9,
1999. Accordingly, the agency's final decision dismissing complainant's
complaint for failure to state a claim is AFFIRMED. In light of our
disposition of this case, we find it unnecessary to address the agency's
alternative grounds for dismissal.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the office of federal operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 18, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 The record in this case contains a copy of an agency document
identified as a �Grievance Decision,� dated February 9, 1999. Therein,
the agency indicated that complainant disputed the results of his 1997
annual evaluation. The agency also indicated that due to significant
procedural errors in the administrative process, complainant would be
granted the relief that he had requested in the grievance.