01985331
01-24-2000
Jonathan L. Andrews, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Jonathan L. Andrews v. Department of the Treasury
01985331
January 24, 2000
Jonathan L. Andrews, )
Complainant, )
)
v. )
) Appeal No. 01985331
Lawrence H. Summers, ) Agency No. 97-4340
Secretary, )
Department of the Treasury, )
Agency. )
____________________________________)
DECISION
On June 30, 1998 complainant filed an appeal with this Commission
from a final agency decision (FAD) which dismissed his complaint for
failure to state a claim.<1> In response to complainant's appeal,
the agency argues the appeal is untimely. Specifically, the agency
contends that a Domestic Return Receipt was signed at complainant's
home by a named party, with complainant's surname, on May 5, 1998 and
therefore, complainant's June 30, 1998 appeal is beyond the thirty (30)
day time limitation. Complainant contends that the FAD "did not state
the statute for filing with the EEOC nor did it provide the address to
which to file...." The FAD indicates that appeal rights are attached,
however, no rights are presently attached to the copies in the record.
Under the circumstances, we find that there is adequate justification
for extending the limitations period. See 29 C.F.R. �1614.604(c).
On September 28, 1997 complainant filed a formal complaint alleging
discrimination on the bases of sex (male) and reprisal (prior EEO
activity) when the agency conducted investigations into whether he had
harassed a coworker. In his formal complaint, complainant stated that
the co-worker has filed numerous complaints against him that are without
merit. As relief, complainants requested, in part, that the co-worker's
complaints be treated with the skepticism that any reasonable person
would give them. The agency accepted the complaint for investigation
and defined the claim as follows:
Complainant is being subjected to a hostile work environment and
harassment by continually being subjected to Inspection Investigations,
most recently on June 10, 1997, and being interrogated informally by
Management.
On April 27, 1998, however, the agency issued a FAD dismissing
complainant's complaint for failure to state a claim. Specifically,
the agency stated that complainant failed to show how the Inspection's
inquiry denied him a personal right or imposed a burden upon him. The FAD
also rejected the assertion that the claims constituted a hostile working
environment. The agency further addressed complainant's complaint in
terms of whether he timely contacted an EEO Counselor, and found that
the complaints of the co-worker were not part of a continuing violations.
The Commission finds that the agency properly dismissed complainant's
complaint for failure to state a claim. EEOC Regulation 64
Fed. Reg. 37,644, 37,656 (1999) (to be codified at, and herein cited
as, 29 C.F.R. � 1614.107(a)(1)) provides, in relevant part, that an
agency shall 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. See Diaz v. Department of the Air Force, EEOC
Request No. 05931049 (April 21, 1994).
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 co-worker 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). We have also held that such a complaint constitutes a collateral
attack on another EEO matter. See Smith v. Department of Veterans Affairs,
EEOC Request No. 059506945 (April 4, 1996). 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. See Calloway
v. Department of the Army, EEOC Appeal No. 01943406 (July 15, 1994);
Sherwood v. Department of the Army, EEOC Appeal No. 01941846 (June 3,
1994).
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.<2>
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:
January 24, 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:
_______________ _________________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect which 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.
2Because we affirm the agency's dismissal of the complaint for the
reason set forth above, we find it unnecessary to address the agency's
decision to dismiss the complaint on alternative grounds.