0120162497
11-15-2016
Darla W.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Darla W.,1
Complainant,
v.
Loretta E. Lynch,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Appeal No. 0120162497
Agency No. FBI201600063
DECISION
Complainant timely appealed with this Commission from the Agency's June 21, 2016 dismissal of 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was no longer employed with the Agency, having voluntarily resigned from her position as a Special Agent ("SA") at Agency Headquarters in Washington, D.C. in July 2006.
On February 6, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), sex (female), age (50), and reprisal for prior protected EEO activity when:
1. In April and May 2015 the Agency took no action regarding her complaints about actions allegedly taken against her by individuals from Georgia;
2. On May 28, 2015, her house was searched by 20 law enforcement officers, including one from the Agency;
3. On June 26, 2015, she was ridiculed and insulted by individuals at the Youngstown Resident Agency ("YRA") and no action was taken regarding her claims of interstate stalking and threats;
4. On July 16, 2015, the Agency had a non-Agency attorney follow her in his car and "menace" her;
5. On August 7, 2015, the Assistant Special Agent in Charge ("ASAC") in the YRA did not return her call and took no action regarding the attorney who "menaced" her;
6. In September 2015 Agency employees used illegal surveillance equipment to collect information from her using technology unavailable to the general public; and
7. In September 2015 the Agency did not take any action after her aunt allegedly threw a grenade at her house.
These alleged discriminatory acts arise from Complainant's ongoing efforts to obtain reinstatement to her prior position as a Special Agent ("SA"). Since voluntarily retiring in 2006, Complainant applied for reinstatement multiple times through the Agency's Human Resources Office. The Agency denied all of her requests, so Complainant raised the matter in a Formal EEO Complaint, alleging that the Agency's denials were motivated by discrimination. The Agency investigated her complaint, and in 2013, it was brought before an EEOC Administrative judge ("AJ"). The AJ issued a finding of no discrimination, which the Agency adopted and implemented in a Final Order. Complainant appealed to this Commission, and in 2015, after thoroughly reviewing the record, we affirmed the AJ's finding of no discrimination. See Complainant v. Dep't of Justice, EEOC Appeal No. 0120133022 (Jul. 7, 2015).
Complainant, who in the years after her voluntary retirement relocated to Youngstown, Ohio, continues to seek reinstatement, with two pending actions in civil court, and by requesting reinstatement as a remedy in the instant complaint.2 She alleges that the Agency has colluded with several of her family members, local law enforcement, various Agency and civilian informants from as many as 7 states and the District Columbia, as well as the Agency's local office, the Youngstown Resident Agency ("YRA") to thwart these efforts with intimidation and harassment. Among other things, Complainant describes armed individuals in SUVs following and surveying her. She also conveys her frustration with YRA, when, after transcribing numerous text messages from individuals allegedly stalking and attempting to blackmail her, she delivered the transcriptions and reported additional threats and stalking, yet no investigation was opened. Complainant also alleges that the Agency and other individuals used satellite-based or electronic technology in order to communicate with and spy on her to disrupt her EEO activity.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. Specifically, the Agency argues that Complainant's pending civil actions bar her from raising the instant complaint pursuant to 29 C.F.R. �� 1614.107(3) and 1614.109(b). Alternately, the Agency argues that Complainant lacks standing to raise an EEO complaint because she is not an "employee" or "applicant." The Agency provided additional alternate grounds for dismissal for Claims 1 through 3, citing untimely contact with an EEO Counselor, pursuant to 29 C.F.R. � 1614.105(a)(1).
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, 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). 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. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
The Commission has a policy of considering reprisal claims with a broad view of coverage so that a complainant is protected from any retaliatory discrimination that is reasonably likely to deter protected activity. See Maclin v. USPS, EEOC Appeal No. 0120070788 (Mar. 29, 2007) citing Carroll v. Dep't Army, EEOC Request No. 05970939 (Apr. 4, 2000).
Even applying the broad view of EEOC coverage afforded to claims of reprisal, we find Complainant fails to state a claim because she lacks standing to bring her complaint. Specifically, there is no evidence to support the threshold requirement that Complainant is either an employee or an applicant for employment with the Agency. Complainant also fails to establish that she is "aggrieved."
On appeal, Complainant argues that "at all relevant times" she participated in pending EEO discrimination complaint processes as "an applicant for reinstatement" or as a party "in a consequent pending lawsuit in the United States District Courts due to subject matters involving said EEO discrimination complaint processes." The Agency responds that Complainant's use of the term "applicant" is "an inaccurate and misleading description [because] she does not deny voluntarily retiring and she does not allege to have actually applied for any specific position." Based on the record, we agree with the Agency's assessment that Complainant is seeking reinstatement. As discussed above, the Agency denied Complainant's application for reinstatement long before Complainant raised the instant complaint. Complainant provides no evidence that the Agency is reconsidering its prior decision. The pending civil actions on the matter do not give Complainant applicant status, as her reinstatement will be determined by the Court, not the Agency. Hence, Complainant is not "aggrieved" because she does not describe a "present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy."
We decline to examine Complainant's alternate arguments, as she lacks standing to raise a claim before this Commission. Likewise, as none of Complainant's allegations state a claim, we find decline to review the Agency's alternate grounds for dismissal, that Claims 1, 2, and 3 were untimely pursuant to 29 C.F.R. � 1614.105(a)(1).
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
November 15, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Lawson v. Lynch et al, Case No. 1:15-cv-01723 (D.C. Cir. filed Oct. 19, 2015); Lawson v. United States Att'y Gen. et al, Case No. 4:15-cv-02140 (N.D. Ohio Civ. filed Oct. 15, 2015).
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