0120092489
09-29-2009
Rickey Pasley, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, Agency.
Rickey Pasley,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
Agency.
Appeal No. 0120092489
Agency No. BOP-2009-0184
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated April 27, 2009, dismissing his 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.
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) .
In a formal EEO complaint dated January 9, 2009, complainant alleged that
the agency discriminated against him on the bases of race (Black) and
reprisal for prior protected EEO activity when an agent from the Office of
Inspector General (OIG) questioned his pastor, family and local hospital
staff about him. In its April 27 final decision, the agency dismissed
complainant's claim pursuant to 29 C.F.R. � 1614.107(a)(1), for failure
to state a claim. Specifically, the agency found that complainant's
claim lodged a collateral attack on the OIG investigative process and
that complainant failed to show himself aggrieved or subject to actions
that rose to the level of a hostile work environment. The instant appeal
from complainant followed.
On appeal, complainant stated that his claim is that "[the agency]
deliberately referred an allegation of misconduct to [OIG] because
[complainant is] black, and participated in pas[t] EEO cases and
complaints." Complainant alleged disparate treatment.
After a careful review of the record, we agree with the agency dismissal
of complainant's claim. The regulation set forth at 29 C.F.R. �
1614.107(a)(1) provides, in pertinent part, that an agency shall dismiss
a complaint that fails to state a claim. Complainant's claim challenges
the process for another forum and constitutes a collateral attack upon
that process, and therefore fails to state a claim. See Wills v. Dep't
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 24, 1993). Further, even if we consider the adverse action as
the agency's referral of complainant to OIG, we find that complainant
failed to allege that he suffered harm or loss with respect to a term,
condition, or privilege of employment for which there is a remedy1, severe
or pervasive conduct2, or conduct reasonably likely to deter protected
activity3. Based on the above, we AFFIRM the agency's final decision
dismissing complainant's complaint.
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
September 29, 2009
__________________
Date
1 See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April
21, 1994).
2 Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
3 See Carroll v. Dep't of the Army, EEOC Request No. 05970939 (April 4,
2000); EEOC Compliance Manual Section 8, "Retaliation," No. 915.003
(May 20, 1998), at 8- 15.
??
??
??
??
2
0120092489
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120092489