Jeannette A. Holt, Appellant,v.Bruce Babbitt, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionNov 5, 1998
01970700 (E.E.O.C. Nov. 5, 1998)

01970700

11-05-1998

Jeannette A. Holt, Appellant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.


Jeannette A. Holt, )

Appellant, )

)

v. ) Appeal No. 01970700

) Agency No. BIA-95-058

Bruce Babbitt, )

Secretary, )

Department of the Interior, )

Agency. )

______________________________)

DECISION

Based on a review of the record, we find that the agency properly

dismissed all five allegations in appellant's complaint, pursuant to

EEOC Regulation 29 C.F.R. �1614.107(a), for failure to state a claim.

Appellant alleged that she was subjected to discrimination on the bases

of race (Non-Navajo), color (Brown/White), and sex (female) when:

On January 25, 1994, appellant's supervisor controverted appellant's

Office of Workers' Compensation Programs ("OWCP") claim;

On October 19, 1994, appellant's OWCP claim was rejected;

During the OWCP investigation the Claims Examiners invaded appellant's

privacy and subjected her to acts of discrimination, harassment, and

unfair labor practices;

In a February 22, 1994 memorandum from appellant's supervisor concerning

appellant's OWCP claim, she defamed appellant's character; and

On January 11, 1994, and January 18, 1994, appellant received memoranda

from her supervisors concerning a student who was transferred out of

her class without consulting appellant or giving her an opportunity

to discuss it with her supervisors.

EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss

a complaint which 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).

Allegations (1) through (4) concern the processing and eventual decision

rendered on appellant's OWCP claim. The Commission has held that an

employee cannot use the EEO complaint process to lodge a collateral

attack on another proceeding. Kleinman v. USPS, EEOC Request No.

05940585 (September 22, 1994); Lingad v. USPS, EEOC Request No.

05930106 (June 24, 1993). The proper forum for appellant to have raised

her challenges to actions which occurred during the OWCP investigation

was within the OWCP process. It is inappropriate to now attempt to use

the EEO process to collaterally attack actions which occurred during

the investigation of appellant's OWCP claim.

Regarding allegation (5), appellant failed to show that she suffered harm

with respect to the terms, conditions, or privileges of her employment

as a result of her receipt of the memoranda or the transfer of a student

without her consultation. Consequently, we find that allegation (5)

fails to state a claim.

Accordingly, the agency's final decision dismissing appellant's complaint

is AFFIRMED.

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 (S0993)

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. 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:

November 5, 1998

____________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations