0120093656
12-17-2009
Rick L. Madore, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.
Rick L. Madore,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Finance & Accounting Service),
Agency.
Appeal No. 0120093656
Agency No. DFAS-00059-2009
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated July 23, 2009, dismissing a formal complaint of
unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
On July 2, 2009, complainant filed the instant formal complaint. Therein,
complainant claimed that he was subjected to discrimination on the bases
of age and in reprisal for prior EEO activity when:
on April 6 and 27, 2009, a DFAS Limestone management official falsified
grievance responses; and on April 6, 2009, he falsified a response to
a union request for information and violated the DFAS core value of
integrity.
In its July 23, 2009 final decision, the agency dismissed complainant's
formal complaint pursuant to 29 C.F.R. � 1614.107(a)(4) on the grounds
that these claims state the same matters that were raised in a negotiated
grievance procedure that permits claims of discrimination to be raised.
The record reflects that on March 13, 2009 and April 16, 2009, complainant
filed a grievance concerning his removal from the Leaders in Motion
(LIM) program. As a remedy, complainant requested to be reinstated into
the LIM program at the GS-09 pay grade. In the
instant complaint, complainant alleged that the DFAS Limestone
management official falsified "his April 6, 2009 Step 3 grievance
decision, falsifying his April 6, 2009 memorandum response to the Union's
formal request for information, and violation of the DFAS core values,
specifically integrity."
While the agency dismissed the instant complaint pursuant to on the
grounds that these claims state the same matters that were raised in a
negotiated grievance procedure that permits claims of discrimination to
be raised, the Commission determines that the complaint is more properly
analyzed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state
a claim.
Upon review, the Commission determines that complainant's claim
constitutes a collateral attack on the negotiated grievance process.
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. See Willis
v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998);
Kleinman v. United States Postal Service, EEOC Request No. 05940585
(September 22, 1994); Lingad v. United States Postal Service, EEOC Request
No. 05930106 (June 25, 1993). The proper forum for complainant to have
raised his challenges to actions which occurred during the negotiated
grievance process was within that forum itself. It is inappropriate to
now attempt to use the EEO process to collaterally attack actions which
occurred during the negotiated grievance process. Accordingly, the
agency's final decision dismissing complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
December 17, 2009
__________________
Date
2
0120093656
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120093656