Bryan Hill, Appellant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionSep 3, 1999
01985086 (E.E.O.C. Sep. 3, 1999)

01985086

09-03-1999

Bryan Hill, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Bryan Hill v. Department of the Navy

01985086

September 3, 1999

Bryan Hill, )

Appellant, )

)

v. ) Appeal No. 01985086

) Agency No. DON-98-60530-001

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

______________________________)

DECISION

On June 6, 1998, appellant filed a timely appeal with this Commission

from a final agency decision (FAD), dated May 28, 1998, pertaining to

his complaint of unlawful employment discrimination in violation of

the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29

U.S.C. �621 et seq., �501 of the Rehabilitation Act of 1973, as amended,

29 U.S.C. �791 et seq., and Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. �2000e et seq. The Commission accepts appellant's

appeal in accordance with EEOC Order No. 960, as amended.

In his complaint, appellant alleged that he was subjected to

discrimination when:

False and malicious statements were made by Business Systems Department

personnel in reprisal for reporting computer misappropriation;

on the bases of age (56), sex (male), and perceived mental disability

(senility) when:

In the March 1997 time frame, appellant confirmed that he was the subject

of a conversation amongst contracts personnel of the Naval Air Warfare

Center Weapons Division China Lake at a dinner on 14 January 1997;

On 24 September 1997, appellant's Freedom of Information Act request

for an investigative report regarding the above-referenced dinner was

denied;

Two agency officials have harassed appellant by making disparaging

statements regarding appellant's character; and

NAVAIR personnel have harassed appellant by making disparaging statements

regarding appellant's character.

The agency dismissed allegations 1, 3, and 5 for failure to state a

claim; allegation 2 for untimely EEO contact; and allegations 4 and 5

for raising a matter that that has not been brought to the attention of

a Counselor and is not like or related to a matter that has been brought

to the attention of a Counselor. Specifically, the agency found that

allegation 1 is not redressable under 29 C.F.R. �1614.103; allegation

2 was brought to the attention of a Counselor on August 21, 1997, which

is beyond the 45-day limitation; allegation 3 is not acceptable due to

lack of jurisdiction; allegation 4, involving alleged harassment, was not

raised in counseling and is not in any way similar to the other issues

raised; and allegation 5 involves personnel from a different agency, and

is also not in any way similar to the other issues raised in counseling.

The record indicates that appellant was the subject of a dinner

conversation among contracts personnel of the Naval Air Warfare Center

Weapons Division China Lake. Appellant alleged that he was being

referred to as "senile" and comments were made that he "should have been

forced to retire five years ago." Appellant requested an investigation

of this matter, which ultimately became the subject of his FOIA request.

On appeal, appellant contends that the agency failed to properly

investigate his complaint that he was subjected to a hostile, abusive,

biased and discriminatory work environment. Appellant also asserts that

the issue involving the denial of his FOIA request was raised with the

EEO Counselor.

In response, the agency notes that allegation 1 is not afforded

protection under Title VII because it involves "whistleblowing," which

is addressed under a separate and distinct statute. Furthermore, the

agency finds that appellant has not shown an injury because words are

not enough to render an individual aggrieved for purposes of Title VII.

Regarding allegation 2, the agency's position is that because appellant

should have reasonably suspected discrimination in March 1997, the 45-day

period expired in the latter part of May 1997. Also, the agency contends

that appellant has not shown any harm with respect to these remarks.

Concerning allegation 3, the agency asserts that FOIA regulations govern

FOIA requests, not the EEO Regulations. Additionally, the agency reveals

that appellant ultimately received a copy of the requested investigative

report; thus, appellant's allegation is moot. With regard to allegations

4 and 5, the agency finds no mention of the officials' disparaging

statements regarding appellant's character in the EEO Counselor's report.

Furthermore, the agency contends that these alleged comments are not

sufficient to render appellant aggrieved within the meaning of Title VII.

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. 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).

As to allegation 1, it is well-settled that engaging in whistle-blowing is

not protected EEO activity. See Reavill v. Department of the Navy, EEOC

Appeal No. 05950174 (July 19, 1996). Here, appellant's reprisal claim,

for reporting computer misappropriation, is not alleging harm based on

protected EEO activity under the purview of Title VII, the ADEA, or the

Rehabilitation Act. Therefore, allegation 1, which is solely based on

reprisal for reporting computer misappropriation was properly dismissed

for failure to state a claim.

As to allegation 3, the Commission has held that it does not have

jurisdiction over the processing of FOIA requests. Instead, persons

having a dispute regarding such requests should bring any appeals about

the processing of his or her FOIA requests under the appropriate FOIA

regulations. Gaines v. Department of the Navy, EEOC Request No. 05970386

(June 12, 1997). In the instant case, therefore, appellant's allegation

that the agency improperly handled his FOIA request fails to state a

claim within the purview of the EEOC Regulations at 29 C.F.R. �1614,

and was properly dismissed by the agency.

EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of

discrimination should be brought to the attention of the Equal Employment

Opportunity Counselor within forty-five (45) days of the date of the

matter alleged to be discriminatory or, in the case of a personnel

action, within forty-five (45) days of the effective date of the action.

The Commission has adopted a "reasonable suspicion" standard (as opposed

to a "supportive facts" standard) to determine when the forty-five (45)

day limitation period is triggered. See Ball v. USPS, EEOC Request

No. 05880247 (July 6, 1988). Thus, the time limitation is not triggered

until a complainant reasonably suspects discrimination, but before all

the facts that support a charge of discrimination have become apparent.

EEOC Regulations provide that the agency or the Commission shall extend

the time limits when the individual shows that she was not notified of the

time limits and was not otherwise aware of them, that she did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence she was prevented

by circumstances beyond her control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission.

As to allegation 2, appellant clearly contacted an EEO Counselor well

beyond the 45-day limitation. Clearly, appellant was aware of the

alleged discriminatory action based on his request for an investigation

of the matter. The Commission has held that the use of the grievance

process or other internal appeal process does not toll the time limit for

contacting an EEO Counselor. See Speed v. USPS, EEOC Request No. 05921093

(June 24, 1993). Appellant failed to present adequate justification to

warrant an extension of the applicable time limit. Thus, the agency's

dismissal of allegation 2 is proper.

EEOC Regulation 29 C.F.R. �1614.107(b) states, in pertinent part, that

an agency shall dismiss a complaint or portion thereof which raises a

matter that has not been brought to the attention of an EEO Counselor,

and is not like or related to a matter on which the complainant has

received counseling. A later allegation or complaint is "like or related"

to the original complaint if the later allegation or complaint adds

to or clarifies the original complaint and could have reasonably been

expected to grow out of the original complaint during the investigation.

See Calhoun v. United States Postal Service, EEOC Request No. 05891068

(March 8, 1990); Webber v. Department of Health and Human Services,

EEOC Appeal No. 01900902 (February 28, 1990).

As to allegations 4 and 5, while not raised with the EEO Counselor, it

can be said that these allegations could have reasonably been expected to

grow out of the original complaint during the investigation. The agency

employees identified in allegations 4 and 5 were also identified in

connection with the dinner, which was the subject of EEO counseling,

and they also involve disparaging remarks about appellant, the same as

the remarks at the subject dinner. Therefore, the agency's dismissal

of allegations 4 and 5 for not being raised with a Counselor is improper.

Finally, with respect to allegation 5, the agency dismissed this

allegation on the alternative grounds that the proper agency against

which appellant should file is NAVAIR, since NAVAIR personnel were the

alleged responsible officials. The Commission notes, however, that it

appears based on the present record that NAVAIR personnel are employees

of the identified agency, i.e., the Department of the Navy. Therefore,

we find that allegation 5 appears to have been properly pursued against

the identified agency and states a proper claim.

CONCLUSION

For the reasons discussed above, the Commission AFFIRMS the agency's

dismissal of allegations 1, 2, and 3, but REVERSES the agency's dismissal

of allegations 4 and 5.

ORDER (E1092)

The agency is ORDERED to process the remanded allegations in accordance

with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant

that it has received the remanded allegations within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue to

appellant a copy of the investigative file and also shall notify appellant

of the appropriate rights within one hundred fifty (150) calendar days

of the date this decision becomes final, unless the matter is otherwise

resolved prior to that time. If the appellant requests a final decision

without a hearing, the agency shall issue a final decision within sixty

(60) days of receipt of appellant's request.

A copy of the agency's letter of acknowledgment to appellant and a copy

of the notice that transmits the investigative file and notice of rights

must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action.

The report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503(a). The appellant also has the right

to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. ��1614.408, 1614.409, and 1614.503(g). Alternatively,

the appellant has the right to file a civil action on the underlying

complaint in accordance with the paragraph below entitled "Right to File

A Civil Action." 29 C.F.R. ��1614.408 and 1614.409. A civil action for

enforcement or a civil action on the underlying complaint is subject to

the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

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 (T0993)

This decision affirms the agency's final decision in part, but it also

requires the agency to continue its administrative processing of a

portion of your complaint. You have the right to file a civil action

in an appropriate United States District Court on both that portion of

your complaint which the Commission has affirmed AND that portion of the

complaint which has been remanded for continued administrative processing.

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. 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 (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. 3, 1999

____________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations