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).