Theodore McGary, Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionSep 9, 1999
01991658 (E.E.O.C. Sep. 9, 1999)

01991658

09-09-1999

Theodore McGary, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Theodore McGary v. Department of the Army

01991658

September 9, 1999

Theodore McGary, )

Appellant, )

) Appeal No. 01991658

v. )

) Agency No. AQWFDF091010320

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

)

DECISION

INTRODUCTION

Appellant filed an appeal with this Commission from a final agency

decision concerning his complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq. The appeal is accepted in accordance with EEOC

Order No. 960, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed appellant's

complaint for failure to state a claim and raising a matter already

decided by the agency.

BACKGROUND

Appellant filed a formal complaint on August 17, 1998, alleging

discrimination on the bases of race (Black) and reprisal (prior EEO

activity) when, (1) on June 5, 1998, the agency issued a final decision,

in response to his May 12, 1998 grievance, which did not comply with the

provisions of the Department of Defense Administrative Grievance System

and, (2) on or about June 9, 1998, during an appointment to discuss his

decision and other management concerns, the colonel failed to accord him

(appellant) the same benefit of discourse granted to all employees.

In its final agency decision, the agency dismissed the complaint for

failure to state a claim upon concluding that it raised issues that has

already been decided by the agency. This appeal followed.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that

an agency shall dismiss a complaint, or portion thereof, that fails to

state a claim under �1614.103 or �1614.106(a) or states the same claim

that is pending before or has been decided by the agency.

An agency shall accept a complaint from any aggrieved employee

or applicant for employment who believes that he or she has been

discriminated against by that agency because of race, color, religion,

sex, national origin, age or disabling condition. 29 C.F.R. �1614.103;

�1614.106(a). The Commission's federal sector case precedent has long

defined an "aggrieved employee" as one who suffers a present harm or loss

with respect to a term, condition, or privilege of employment for which

there is a remedy. Diaz v. Department of the Air Force, EEOC Request

No. 05931049 (April 21, 1994).

The Grievance Procedure - Allegation (1)

In the present case, the evidence reveals that appellant filed a

grievance with the agency after his supervisor issued him a five day

suspension for uncooperative, disrespectful, and defiant behavior.

After reviewing appellant's grievance, the agency upheld the suspension.

In his formal complaint, appellant alleged that, in issuing the grievance

decision, the agency failed to consider all relevant evidence as it was

required to do under the Department of Defense's Directive 1400.25-M,

Administrative Grievance System (December 20, 1995). However, as we have

held, a challenge to an evidentiary ruling in a grievance process fails

to state a claim as an EEO complaint. See Lingad v. United States Postal

Service, EEOC Request No. 05930106. Such allegations are characterized

as collateral attacks which, by definition, involve challenges to other

forums' proceedings. While the Commission has recognized very narrow

exceptions<1>, generally, such claims are prohibited. In this case, a

narrow exception is not applicable. Therefore, we find that the agency's

decision to dismiss this allegation pursuant to 29 C.F.R. �1614.107(a)

was correct.

The Benefit of Discourse - Allegation 2

In documents submitted with his formal complaint, appellant contends

that management has an open door policy, accorded to all employees, which

allows for the expression of concerns. He believes that he was treated

differently than similarly situated employees when he was not allowed to

discuss the agency's decision to uphold his suspension. As both parties

point out, the agency did agree to meet with appellant to discuss this

and other issues. However, shortly after the meeting started, it ended

abruptly when appellant expressed, in a loud voice according to the

agency, displeasure with the leadership. Because the agency did meet

with appellant, as it would have other employees, we hold that he was

not treated differently than others similarly situated. Presumably, the

agency's open door policy does not mean that an employee has free reign

to say whatever he or she pleases without consequences. Accordingly, we

find that the agency's decision to dismiss this allegation for failure

to state a claim was appropriate.

CONCLUSION

Based on the foregoing, the decision of the agency is proper and is,

therefore AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. Filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1092)

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:

Sept. 9, 1999

____________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

1 See Ellis v. United States Postal Service, EEOC Request No. 05920011

(March 12, 1992) (discriminatory application of grievance process may

state a claim), O'Neal v. United States Postal Service, EEOC Request

No. 05900620 (August 30, 1990) (discriminatory failure to process a

workers' compensation claim by failing to provide necessary information

to the Department of Labor states a claim).