01A03535
10-08-2002
John E. Smith, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
John E. Smith v. Department of the Army
01A03535
10-08-02
.
John E. Smith,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A03535
Agency Nos. COL98AR1076E, COL98AR1077E, COL98AR1049E
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaints 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. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission AFFIRMS,
in part, and VACATES and REMANDS, in part, the agency's final decision.
During the relevant time, complainant was employed as a Training
Specialist, GS-1712-11, at the School of Military Packing Technology,
U.S. Army Ordnance Center and School, Aberdeen Proving Ground, Maryland.
On three separate occasions, complainant sought EEO counseling and
subsequently filed formal complaints on February 20, 1996, February 19,
1998, and July 16, 1998, alleging that he was discriminated against on
the bases of sex (male) and reprisal for prior EEO activity when:
(1) he was not selected for promotion to a GS-1712-12 Training Specialist
position based on reprisal (Agency No. COL98AR1076E) (complaint 1);
he was subjected to a hostile work environment based on sex because
two other employees filed sexual harassment complaints against him
(Agency No. COL98AR1077E) (complaint 2); and
his prior EEO complaints were not properly processed (Agency
No. COL98AR1049E) (complaint 3).
The agency consolidated complainant's three complaints and conducted an
investigation. At the conclusion of the investigation, complainant was
informed of his right to request a hearing before an EEOC Administrative
Judge (AJ) or alternatively, to receive a FAD. By letter, received
on March 29, 1999, complainant requested a FAD on two complaints and
a hearing before an AJ on one complaint,<1> and on April 15, 1999,
complainant clarified his prior letter and requested a FAD in complaint 2.
The record reflects that, on April 16, 1999, the Chief, Office of Equal
Opportunity, sent the Director, EEO Compliance and Complaints Review
Agency, a memorandum stating that complainant had requested a FAD in
complaint 2.
On March 14, 2000, the agency issued a FAD on complaints 1, 2, and 3.
The agency found that complainant failed to establish a prima facie case
of sex or reprisal discrimination in the three complaints. The agency
then assumed arguendo that complainant had established a prima facie case
of sex and reprisal discrimination and determined that it had articulated
legitimate nondiscriminatory reasons for actions. Finally, the agency
found that complainant failed to show that its reasons were a pretext
for discrimination and concluded that complainant failed to prove that
the agency discriminated against him on the bases of sex or reprisal.
On appeal, complainant contends, among other things, that: (1)
he requested a hearing in complaint 1, but his request was ignored;
(2) the agency took three and a half years to process that complaint,
resulting in the filing of his third complaint; and (3) his coworkers'
accusations of sexual harassment created a hostile work environment for
him. The agency acknowledges that complainant requested a FAD only in
complaint 2, but requests that we affirm its FAD on all three complaints.
Complaint 1 (Agency No.COL98AR1076E)
EEOC Regulation 29 C.F.R. � 1614.108(f) provides that the agency
shall provide the complainant with a copy of the investigative file,
and shall notify the complainant that, within 30 days of receipt of the
investigative file, the complainant has the right to request a hearing
and a decision from an AJ or may receive an immediate final decision
from the agency.
In the present case, complainant received the notice of right to
request a hearing on March 5, 1999. The record reflects and the agency
acknowledges that, in letters dated March 29, 1999 and April 15, 1999,
complainant timely requested a hearing before an AJ in complaint 1.
However, despite complainant's request, the agency issued the FAD
in complaints 1, 2, and 3 on March 14, 2000. The Commission finds
that complainant must be given the opportunity to develop a full
and appropriate record at a hearing, as his request for a hearing in
complaint 1 was timely. Accordingly, the Commission remands complaint
1 to the agency for processing before an AJ.
Complaint 2 (Agency No. COL98AR1077E)
The Commission concurs with the agency's determination that complainant
failed to establish that he was discriminated against on the basis of
sex as alleged in complaint 2. EEOC Regulation 29 C.F.R. �1614.107(a)(1)
requires an agency to dismiss a complaint, or portion thereof, 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;
� 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).
Complainant challenges the filing by other employees of both informal
and formal EEO complaints. To the extent that complainant is challenging
the agency's processing or investigation of the EEO complaints filed by
other individuals, his allegation fails to state a claim. The Commission
has previously held that the filing of an EEO complaint by another
individual does not constitute an injury by the agency to a term,
condition, or privilege of employment. To allow the processing of a
complaint by an employee, wherein the employee challenges the filing
of an EEO complaint by a coworker or other agency employee, would have
a chilling effect on the filing of EEO complaints by aggrieved persons.
See Blinco v. Department of the Treasury, EEOC Request No. 05940194 (May
25, 1994). Moreover, there is no remedial action available to complainant
when another individual files an EEO complaint, as the agency has no
authority to restrain an employee from raising EEO violations through the
EEO complaint process. The Commission further notes that an agency is
legally obligated to investigate a claim of sexual harassment. See Rogers
v. Department of Defense, EEOC Request No. 05940157 (February 24, 1995).
For these reasons, the Commission affirms the agency's finding that
complainant failed to prove by a preponderance of the evidence that he
was discriminated against on the basis of sex as alleged in complaint 2.
Complaint 3 (Agency No. COL98AR1049E)
EEOC Regulation 29 C.F.R. � 1614.107(a)(8) provides for the dismissal
of spin-off complaints, which are complaints about the processing of
existing complaints. It provides instead that complaints about the
processing of existing complaints should be referred to the agency
official responsible for processing, and/or processed as part of the
original complaint, as set forth in Section IV, D of the Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
5-14 (November 9, 1999). We note that, to the extent that complainant
wishes to address the agency's processing of complaint 1, he may raise
his concerns at the hearing before the AJ. EEO MD-110, 5-25.
CONCLUSION
Accordingly, the agency's final decision in complaint 2 (Agency
No. COL98AR1077E) is AFFIRMED, and complaint 1 (Agency No.COL98AR1076E)
is VACATED and REMANDED to the agency for further processing in accordance
with the order below.<2>
ORDER
The agency shall submit to the Hearings Unit of the appropriate EEOC field
office the request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. The agency is directed to submit
a copy of the complaint file to the EEOC Hearings Unit within fifteen
(15) calendar days of the date this decision becomes final. The agency
shall provide written notification to the Compliance Officer at the
address set forth below that the complaint file has been transmitted
to the Hearings Unit. Thereafter, the AJ shall issue a decision on the
complaint in accordance with 29 C.F.R. 1614.109 and the agency shall
issue a final action in accordance with 29 C.F.R. 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 9-18 (November 9, 1999). 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 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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____10-08-02______________
Date
1 Complainant's request cited to various agency case numbers some of
which were not the subject of the agency's investigation.
2 By letter, dated May 22, 2001, the Commission was informed that
complainant is deceased. The estate appears to have an interest in
proceeding with the processing of the remanded portion of this appeal.
Therefore, the agency should contact the estate of John E. Smith for
further information regarding processing.