01a00699
02-29-2000
Debra A. Stanford, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Debra A. Stanford, )
Complainant, )
)
v. ) Appeal No. 01A00699
) Agency No. 960701014
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
____________________________________)
DECISION
On October 27, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) issued on September 23,
1999, pertaining to her 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.<1> The Commission accepts the current appeal
in accordance with EEOC Order No. 960.001.
ISSUE PRESENTED
The issue presented herein is whether the agency properly dismissed
the instant complaint for failure to state a claim and because the
formal complaint was unsigned and insufficiently precise in defining
any discriminatory action(s).
BACKGROUND
For the relevant period of time, complainant was employed by the
Department of the Navy, as a Logistic Management Specialist, GS-346-11.
The record reflects that in April 1997 complainant suffered an on the
job injury that restricted her duties and the amount of time she could
work on
a daily basis. Thereafter, agency's personnel management specialist
(S1) discussed with the workers compensation examiner the prospect that
complainant undergo a referee examination due to conflicting medical
opinions. On March 2, 1999, complainant was requested to undergo a
referee examination. The examination determined that complainant was
still in fact suffering from the injury sustained in April 1997, but her
conditions would improve with future treatment. However, the prognosis
for complete recovery was poor.
Believing that S1's conversation with the workers compensation examiner
was discriminatory, complainant on March 10, 1999, initiated contact
with an EEO Counselor. During the counseling period, complainant stated
that S1 improperly communicated with the Office of Workers Compensation
Programs, in an attempt to influence them that she was fit for duty.
Counseling failed, and on September 15, 1999, complainant filed a
formal complaint. We note, that the formal complaint claimed unlawful
employment discrimination on the bases of race (unspecified), color
(unspecified), disability (unspecified) and gender (female). Furthermore,
the complaint was comprised of two letters. The first letter was a
request for counseling. The second letter was the notice to file a
formal complaint. Within the body of the second letter, the issue
presented during counseling was set forth as complainant believed her
employer improperly communicated with the Office of Workers' Compensation
Programs in order to influence the claims examiner to find complainant fit
for duty. Furthermore, this letter also defined complainant's bases as
race (African-American), color (brown), disability (physical) and gender
(female).
On September 23, 1999, the agency issued a final decision dismissing the
instant complaint because it was unsigned, undated, and insufficiently
precise. Furthermore, the agency dismissed the complaint because the
agency viewed it as an attack on the office of Workers' Compensation
Programs. Therefore, the complaint failed to state a claim.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.106(c) provides that a complaint must
contain a statement that is sufficiently precise to describe generally
the actions or practices that form the basis of the complaint. We find
that complainant's direction to see letters of March 10, 1999 and August
30, 1999, is insufficiently precise to satisfy the requirements of 29
C.F.R. � 1614.106(c). However, after careful review of the record, the
Commission finds that the claim presented is that the agency improperly
influenced the claim examiner for the Workers' Compensation Programs
to find complainant fit for duty. Therefore, the Commission will not
remand the complaint back to the agency for further processing.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 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.
Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 22,
1994).
The only proper questions in determining whether an allegation in
within the purview of the EEO process are (1) whether the complainant
is an aggrieved employee and (2) whether he has alleged employment
discrimination covered by EEO statutes. An employee is �aggrieved� if
he has suffered a direct and personal deprivation at the hands of the
employer. See Hobson v. Department of the Navy, EEOC Request No. 05891133
(March 2, 1990). In this case, complainant has claimed the agency
requested that the Office of Workers' Compensation Programs require
complainant to undergo a referee examination because of conflicting
medical reports. We find that this does not render complainant an
aggrieved employee. Furthermore, the proper forum to challenge this
action by the agency would be before the Workers Compensation Programs,
not the EEOC. Therefore, the Commission dismisses the current complaint
for failure to state a claim.<2>
CONCLUSION
For the reasons set forth herein, the Commission hereby dismisses the
present complaint for failure to state a claim.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
February 29, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant1On 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.
2Since the Commission has dismissed the current complaint for failure to
state a claim, the Commission will not address the agency's alternative
grounds for dismissal.