Appellant, v. William J. Perry, Secretary, Department of Defense (Defense Contract Audit Agency), Agency. Request No. 05931059 Appeal No. 01932504 Agency No. M93-10(1) July 15, 1994 DENIAL OF RECONSIDERATION INTRODUCTION On August 23, 1993, Appellant (hereinafter referred to as appellant) timely [FN1] initiated a request to the Equal Employment Opportunity Commission (EEOC or Commission) to reconsider the decision in Appellant v. Les Aspin, Secretary, Department of Defense (Defense Contract Audit Agency), EEOC Appeal No. 01932504 (July 14, 1993). EEOC Regulations provide that the Commissioners may, in their discretion, reconsider any previous Commission decision. 29 C.F.R. §1614.407(a). The party requesting reconsideration must submit written argument or evidence which tends to establish one or more of the following three criteria: 29 C.F.R. §1614.407(c)(1) (new and material evidence is available that was not readily available when the previous decision was issued); 29 C.F.R. §1614.407(c)(2) (the previous decision involved an erroneous interpretation of law, regulation or material fact, or misapplication of established policy); and 29 C.F.R. §1614.407(c)(3) (the decision is of such exceptional nature as to have substantial precedential implications). Appellant bases his request on 29 C.F.R. §1614.407(c)(2). For the reasons set forth herein, appellant's request is denied. ISSUE PRESENTED The issue presented is whether the previous appellate decision properly affirmed the agency's final decision dismissing part of appellant's complaint for failure to state a claim. BACKGROUND On November 27, 1992, appellant filed a formal complaint alleging discrimination based on sex (male) and reprisal (prior EEO activity). Appellant alleged that the agency engaged in discrimination when, on September 4, 1992, its Assistant General Counsel sent a letter to the Unemployment Compensation Board of Review (hereinafter the Board of Review) for the Commonwealth of Pennsylvania attempting to appeal the determination that he was not discharged for willful misconduct and thus was entitled to benefits. [FN2] On March 17, 1993, the agency issued a final decision dismissing the allegation for failure to state a claim. The agency noted that, at the time the matter arose, appellant was no longer an employee. The agency held that the allegation did not concern appellant's past federal employment, but rather his claim for unemployment compensation which matured only after his termination from employment. The previous appellate decision affirmed the final agency decision. Noting that appellant was no longer employed by the agency when the allegedly discriminatory conduct occurred, the previous decision found that state unemployment benefits are not a term, condition or privilege of employment. Accordingly, the previous decision determined that appellant was not aggrieved and that, therefore, his complaint failed to state a claim. In his request for reconsideration, appellant contends that he filed his complaint because the agency initiated an appeal of the Commonwealth's decision to accept his unemployment compensation claim. Appellant states that he was removed not for misconduct but for prohibited discriminatory reasons. He asserts that unemployment benefits were furnished based on his federal service. He contends that the agency appealed the decision approving unemployment compensation benefits for discriminatory reasons. He concludes that, inasmuch as these benefits arose from his employment with the federal government, he is aggrieved. In its response, the agency asserts that appellant's request meets none of the criteria for granting reconsideration. The agency contends that appellant still has not shown any direct harm to a term, condition or privilege of employment. The agency notes the previous decision's emphases that appellant is no longer employed by the agency and that state unemployment benefits are not a term, condition or privilege of employment. The agency argues that the Commission has no jurisdiction over matters before the unemployment compensation board. With its response, the agency attaches the decision by the Board of Review affirming the denial of benefits by the Referee. Also attached is the Board of Review's final affirmance of its initial decision. The agency maintains that, to the extent appellant believed the Board of Review's decision incorrect, he had the right to appeal to the Commonwealth Court of Pennsylvania. The agency concludes that appellant's attempt to collaterally attack the decision of the Board of Review should be rejected. ANALYSIS AND FINDINGS After a careful review of appellant's request for reconsideration, the Commission finds that the request fails to meet any of the criteria of 29 C.F.R. §1614.407(c). It is therefore the decision of the Commission to deny appellant's request for reconsideration. We find that the previous appellate decision properly affirmed the agency's decision to dismiss appellant's allegation. By filing an EEO complaint alleging that the agency's Assistant General Counsel engaged in discrimination when he challenged a claim for unemployment compensation benefits before the Board of Review, appellant attempted to collaterally attack the decision of the Pennsylvania tribunal established to handle such disputes. Despite his contention that the Assistant General Counsel was motivated by discrimination and reprisal, appellant has not stated a separate and distinct claim of employment discrimination. Rather, his complaint attempts an 'end run' around established adjudicatory procedures. The proper forums in which to expose the agency's purportedly improper motivation were the Referee and the Board of Review. As noted by the agency, appellant also had the right to appeal the Board's determination in state court. A collateral attack on the Board's decision does not state a claim of employment discrimination. Accordingly, we find that the previous decision properly affirmed the final agency decision. Appellant's complaint was properly dismissed for failure to state a claim. CONCLUSION After a review of appellant's reconsideration request, the agency's response, the previous decision, and the entire record, the Commission finds that appellant's request fails to meet the criteria of 29 C.F.R. §1614.407(c), and it is the decision of the Commission to deny appellant's request for reconsideration. The decision of the Commission in EEOC Appeal No. 01932504 (July 14, 1993) remains the Commission's final decision in this matter. There is no further right of administrative appeal from a decision of the Commission on request for reconsideration. STATEMENT OF RIGHTS - ON RECONSIDERATION RIGHT TO FILE A CIVIL ACTION (P0993) This decision of the commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court. 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. 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. 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 Frances M. Hart Executive Officer Executive Secretariat [FN1]. Requests for reconsideration must be filed within 30 days of receipt of the previous appellate decision. 29 C.F.R. §1614.407(b). Appellant received the previous appellate decision on July 17, 1993. In the absence of a legible postmark indicating the date of filing, appellant's request had to be received within five days of the expiration of the 30-day filing period, i.e., within five days of August 16, 1993. 29 C.F.R. §1614.604(b). Because August 21, 1993 was a Saturday, appellant had until the next business day to file his request. 29 C.F.R. §1614.604(d). Appellant's request was received by the Commission on Monday, August 23, 1993. Therefore, his request was timely. [FN2]. Records provided by the agency show that initially the Bureau of Unemployment Compensation Benefits and Allowances approved appellant's claim. The agency appealed this determination and, after a hearing, a Referee reversed the Bureau's determination. Appellant appealed the Referee's decision to the Board of Review, which subsequently issued a decision affirming the Referee and denying benefits. On review, the Board sustained its initial decision and notified appellant of his right to appeal to the Commonwealth Court of Pennsylvania.