Joann T. Hughes, Appellant,v.Kenneth S. Apfel, Commissioner, Social Security Administration,) Agency.

Equal Employment Opportunity CommissionNov 4, 1999
05990698 (E.E.O.C. Nov. 4, 1999)

05990698

11-04-1999

Joann T. Hughes, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration,) Agency.


Joann T. Hughes v. Social Security Administration

05990698

November 4, 1999

Joann T. Hughes, )

Appellant, )

)

v. ) Request No. 05990698

) Appeal No. 01983299

) Agency No. 090462SSA

Kenneth S. Apfel, )

Commissioner, )

Social Security Administration,)

Agency. )

)

DENIAL OF REQUEST TO RECONSIDER

INTRODUCTION

On May 7, 1999, Joann T. Hughes (hereinafter referred to as appellant)

timely initiated a request to the Equal Employment Opportunity Commission

(the Commission) to reconsider the decision in Joann T. Hughes v. Social

Security Administration, EEOC Appeal No. 01983299 (April 21, 1999).

EEOC regulations provide that the Commission may, in its discretion,

reconsider any previous decision. 29 C.F.R. �1614.407(a). The party

requesting reconsideration must submit written argument or evidence

that tends to establish one or more of the following three criteria:

new and material evidence is available that was not readily available

when the previous decision was issued, 29 C.F.R. �1614.407(c)(1);

the previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy, 29

C.F.R. �1614.407(c)(2); or the decision is of such exceptional nature as

to have substantial precedential implications, 29 C.F.R. �1614.407(c)(3).

The appellant's request to reconsider is denied.

ISSUE PRESENTED

The issue presented is whether the previous decision properly affirmed the

agency's final decision which dismissed allegations 5-7 of appellant's

complaint for failure to state a claim.

BACKGROUND

Appellant contacted an EEO Counselor on April 30, 1997. On June 18,

1997, appellant filed a formal EEO complaint wherein she alleged that

she was discriminated against on the bases of her race (black) and in

reprisal for her previous EEO activity when:

1. Appellant's Manager informed the staff at appellant's work location,

in an intimidating manner, that an Equal Employment Opportunity Counselor

was coming to the office and they were under no obligation to speak to

him.

2. Appellant was informed that she was not to have any private

communications with any of her coworkers until the Office of Inspector

General (OIG) investigation was completed.

3. Appellant's newly-detailed supervisor followed her whenever she left

the office (e.g., to the lunchroom, supply room, bathroom, etc.).

4. The Field Office Manager threatened that appellant could lose her

job if she did not cooperate with the OIG investigator.

5. Appellant was subjected to an investigation by the OIG and questioned

in a hostile manner by the investigators.

6. Appellant's request for representation during the OIG investigation

was denied.

7. Appellant was forced to sign a statement called the "Kalkines

Warning," instructing her of her rights and responsibilities during the

OIG investigation.

The agency dismissed allegations 5 - 7 on the grounds of failure to

state a claim. The agency determined that these allegations constitute

collateral attacks on the OIG investigation process, and were, therefore,

beyond the purview of the EEOC Regulations. Allegations 1-4 were accepted

for investigation.

The Commission affirmed the dismissal of allegations 5-7.<1> The

Commission found that these allegations represent collateral attacks on

the OIG investigation. The Commission stated that the proper forum for

appellant to have raised her challenges to actions which occurred during

the OIG investigation was with the Office of Inspector General.

In her request for reconsideration, appellant argues that she is

not collaterally attacking the OIG investigative process, but rather

she is voicing her opposition to the manner in which she was treated.

According to appellant, she has been subjected to continuous harassment

as a result of the OIG interviews/interrogations conducted on April 29,

1997.

ANALYSIS AND FINDINGS

In order to reconsider the Commission's previous decision, the appellant

must present evidence or argument that satisfies one of the criteria

of 29 C.F.R. �1614.407. After considering the appellant's request,

we find that she has not satisfied the criteria for reconsideration.

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

a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103.

For employees and applicants for employment, EEOC Regulation 29

C.F.R. �1614.103 provides that individual and class complaints of

employment discrimination prohibited by Title VII (discrimination on

the bases of race, color, religion, sex and national origin), the ADEA

(discrimination on the basis of age when the aggrieved individual is

at least 40 years of age) and the Rehabilitation Act (discrimination on

the basis of disability) shall be processed in accordance with Part 29

C.F.R. �1614 of the EEOC Regulations.

The only proper inquiry, therefore, in determining whether an allegation

is within the purview of the EEO process is whether the complainant is an

aggrieved employee and whether s/he has alleged employment discrimination

covered by the EEO statutes. 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 (Apr. 21, 1994).

In allegations 5-7, appellant alleged that she was investigated by the

OIG and questioned in a hostile manner by the investigators; her request

for representation during the OIG investigation was denied; and she was

forced to sign a statement called the "Kalkines Warning", which instructed

her of her rights and responsibilities during the OIG investigation.

We find that these allegations constitute a collateral attack on the OIG

investigation. The Commission has held that an employee cannot use the

EEO complaint process to lodge a collateral attack on another proceeding.

Kleinman v. United States Postal Service, EEOC Request No. 05940585

(September 22, 1994); Lingad v. United States Postal Service, EEOC Request

No. 05930106 (June 24, 1993). As the Commission stated in its previous

decision, the appropriate forum for appellant to raise challenges to

actions which occurred during the OIG investigation is with the Office

of Inspector General. Any remedial relief to which appellant may be

entitled due to the incidents raised would be available only through the

OIG, not through the Commission. We find that allegations 5-7 fail to

state a claim under the EEOC Regulations.

After a review of appellant's request for reconsideration, the previous

decision, and the entire record, the Commission finds that appellant's

request does not meet the criteria of 29 C.F.R. �1614.407(a), and

it is the decision of the Commission to deny appellant's request.

The decision of the Commission in EEOC Appeal No. 01983299 remains the

Commission's final decision in this matter. There is no further right

of administrative appeal from a decision of the Commission on a request

for reconsideration.

RIGHT TO FILE A CIVIL ACTION (P0993)

The decision of the Commission is final, and there is no further right of

administrative appeal from the Commission's decision. You have the right

to file a civil action in an appropriate United States District Court.

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. 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.

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 4, 1999

DATE Frances M. Hart

Executive Officer

Executive Secretariat

1Joann T. Hughes v. Social Security Administration, EEOC Appeal No.

01983299 (April 21, 1999).