Cynthia Trahan, Complainant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionAug 23, 2000
01a02205 (E.E.O.C. Aug. 23, 2000)

01a02205

08-23-2000

Cynthia Trahan, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.


Cynthia Trahan v. Department of Transportation

01A02205

August 23, 2000

.

Cynthia Trahan,

Complainant,

v.

Rodney E. Slater,

Secretary,

Department of Transportation,

Agency.

Appeal No. 01A02205

Agency No. DOT-6-00-6014

DECISION

Complainant filed a timely appeal with this Commission from an agency

decision dated December 14, 1999, dismissing her complaint of unlawful

employment discrimination in violation of Title VII of the Civil Rights

Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and the Age

Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �

621 et seq.<1> The appeal is accepted pursuant to 64 Fed. Reg. 37,644,

37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).

On November 8, 1999, complainant filed a formal EEO complaint claiming

that she was the victim of unlawful employment discrimination and

harassment on the bases of her sex (female), age and in reprisal for

prior EEO activity when:

On July 16, 1999, complainant discovered that her workers' compensation

claim had been denied because management provided false information;

On July 13, 1999, an officer from FAA security wanted complainant to

sign a new form with her married name;

On June 22, 1999, complainant learned that her supervisor made derogatory

remarks about her with respect to her bid to SFO;

On July 15, 1999, complainant claims to have been discriminated against

because the way her formal complaints are being handled and dismissed;

and

On June 10, 1999 the FAA violated the Privacy Act when complainant's

medical information was requested.

On December 14, 1999, the agency issued a final decision dismissing

the complaint. With respect to claims 1, 2,3, and 5, the agency found

that these claims failed to state a claim. The agency also dismissed

claim 4 for alleging dissatisfaction with a previously filed complaint.

The Commission finds that the agency properly dismissed claim 4 for

alleging dissatisfaction with the processing of previously filed

complaints. 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified as 29

C.F.R. � 1614.107(a)(8)).

The agency properly dismissed claims 1, 2, 3, and 5 for failure to

state a claim. The regulation set forth at 64 Fed. Reg. 37,644,

37,656 (1999)(to be codified and hereinafter cited as 29 C.F.R. �

1614.107(a)(1)) provides that an agency shall dismiss a complaint 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, .106(a). An aggrieved employee is a person who has suffered

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).

Complainant has failed to establish that she is an aggrieved employee

as a result of claims 2 and 3. Furthermore, we find that claims 2

and 3 even when considered within the context of the larger claim of

harassment, are too isolated and insufficiently severe to state a claim

of a hostile work environment. See Cobb v. Department of the Treasury,

EEOC Request No. 05970077 (March 13, 1997).

The Commission finds that claim 1 amounts to a collateral attack

on an OWCP decision. Where a complainant alleges that the agency

discriminated in a manner pertaining to the merits of the workers'

compensation claim, for example, by submitting paperwork containing

allegedly false information, then the complaint does not state an EEO

claim. Pirozzi v. Department of the Navy, EEOC Request No. 05970146

(October 23, 1998)(allegedly false statements made by agency to OWCP

during OWCP's processing of a workers' compensation claim goes to merits

of compensation claim); Hogan v. Department of the Army, EEOC Request

No. 05940407 (September 29, 1994) (reviewing an allegation that agency

officials provided misleading statements to OWCP would require the

Commission to essentially determine what workers' compensation benefits

the complainant would likely have received); Reloj v. Department of

Veterans Affairs, EEOC Request No. 05960545 (June 15, 1998) (allegation

that agency's provision of false information to the OWCP resulted

in denial of benefits is a collateral attack on OWCP's decision and,

thus, fails to state a claim). Because complainant's complaint in the

case at hand concerns allegedly false information provided to the OWCP

by the agency, the allegation fails to state a claim. Although the

Commission has held that a complainant may not use the EEO process

to launch a collateral attack on the workers' compensation process,

the Commission has recognized very narrow exceptions to the general

prohibition on collateral attacks. See Story v. U.S. Postal Service,

EEOC Request No. 05960314 (October 18, 1996); Lau v. National Credit Union

Administration, EEOC Request No. 05950037 (March 18, 1996). However,

claim 1 in the case at hand does not fall within these narrow exceptions.

In claim 5, complainant alleged that the FAA violated the Privacy Act.

The Commission has held that jurisdiction over alleged violations of

the Privacy Act rests exclusively with United States District Courts.

See Story v. USPS, EEOC Appeal No. 01953767 (October 18, 1995); Concon

v. USPS, EEOC Appeal No. 01965280 (May 14, 1997)(allegation that Privacy

Act violated when a supervisor allegedly allowed a coworker to read

appellant's CA-1 form and coworker discussed its contents with other

employees failed to state a claim because allegation of a Privacy Act

violation is not within the purview of the EEO process); Ogden v. USPS,

EEOC Appeal No. 01965916 (July 17, 1997)(allegation that an agency

official's letter to DOL's OWCP divulged private matters and contained an

accusation of perjury regarding appellant and was false and misleading and

that the information was considered by the DOL's OWCP was an impermissible

collateral attack on the manner in which the agency represented itself in

the DOL's OWCP forum). See also Bucci v. Department of Education, EEOC

Request No. 05890289 (April 12, 1989)(alleged violation of the Privacy

Act is outside the purview of the EEO process): Osborn v. USPS, EEOC

Request No. 05950654 (February 15, 1996). Consequently, the Commission

finds that claim 5 regarding a Privacy Act violation is not within the

purview of the EEO process and as a result fails to state a claim.

The agency's decision dismissing the subject complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

August 23, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), 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.