01a00391
01-19-2000
Roy W. Pruitt, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Roy W. Pruitt, )
Complainant, )
)
v. ) Appeal No. 01A00391
) Agency No. 99-4143
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
The complainant timely filed an appeal with this Commission from a final
decision, dated September 27, 1999, which the agency issued pursuant to
29 C.F.R. �1614.107.<1> The Commission accepts the complainant's appeal
in accordance with EEOC Order No. 960, as amended.
The complainant alleged in a July 13, 1999 complaint that on May 24, 1999,
in retaliation for his prior EEO activity, the agency's facility director
denied the complainant's request that he meet with the complainant to
discuss a five-day suspension that had been issued on March 1, 1999.
The agency dismissed the complaint for failure to state a claim,
finding that the complaint did not concern a term or condition of the
complainant's employment.
On appeal, the complainant states the reasons he believes the Director
should have met with him and addressed the issue of his suspension.
After a review of the record, the Commission finds that the complaint
constitutes a collateral attack on the results of the grievance process.
A collateral attack is a challenge to another forum's proceeding.
Conley v. Department of the Navy, EEOC Request No. 05970402 (February
11, 1999). In this case, the complainant sought a meeting with the
Director because he was dissatsified with the agency's April 16, 1999
response to his third step grievance. When the Director would not meet
with him, he contacted an EEO Counselor and filed this complaint. In
both instances, the complainant sought to reverse the outcome of his
grievance and to be compensated for five-day suspension he had served.
Because the complaint constitutes a collateral attack on the grievance
process, the Commission finds that the complaint fails to state a claim
under 29 C.F.R. Part 1614.
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of the complainant's July 13, 1999 complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
January 19, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant and the agency on:
_________________ ___________________________
DATE 1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all Federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at WWW.EEOC.GOV.