Jonathan L. Andrews, Complainant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionJan 24, 2000
01985331 (E.E.O.C. Jan. 24, 2000)

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.