Roy W. Pruitt, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJan 19, 2000
01a00391 (E.E.O.C. Jan. 19, 2000)

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.