01985303_r
09-17-1999
Kimberly A. Oglesby, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Kimberly A. Oglesby, )
Appellant, )
)
v. ) Appeal No. 01985303
) Agency No. 98-00681-N03
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
On June 22, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by her on May 23, 1998,
pertaining to her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. In her complaint, appellant alleged that she
was subjected to discrimination in reprisal for prior EEO activity when:
On an unspecified date, appellant was assigned the duties of a
non-managerial, non-supervisory retail trainee;
On unspecified dates, management officials conspired to mis-classify
appellant's position description;
On an unspecified date, management officials withheld an MWR 500 form,
and a Personnel Action form, dated October 9, 1997, was later altered;
and
On an unspecified date, the MWR Human Resources Director (HR Director)
directed appellant's grievance request to step one instead of step
three of the administrative grievance procedure.
The agency dismissed allegations (1) through (4) pursuant to EEOC
Regulation 29 C.F.R. �1614.107(a), for failure to state a claim.
Alternatively, the agency dismissed allegations (1) and (2) pursuant
to 29 C.F.R. �1614.107(a), for stating the same claim that appellant
previously filed in Agency No. 98-00681-N01. Specifically, the agency
concluded that appellant was not aggrieved under the EEOC regulations as
a result of the allegations she raised. The agency also noted that one
of the allegations appellant raised in a previous complaint she filed,
identified as Agency No. 98-00681-N01, concerned the October 10, 1997
reassignment from her position of Deputy Director, MWR Human Resources
Division, to the non-supervisory trainee position at MWR Retail Division.
The agency further determined that this represented the same claim
appellant raised in allegations (1) and (2) of her present complaint.<1>
On appeal, appellant contends that the agency's decision is suspect
because the same individual that is the subject of appellant's complaint
is responsible for the processing of her EEO complaint. Specifically,
appellant asserts that one of the collateral duties of the HR Director
is the EEO complaint administrator, and, therefore, there exists an
�inherent[] conflict[].�
The Commission notes that Management Directive 110 (1-1) provides that
agencies must avoid conflicts of position or conflicts of interest, as
well as the appearance of such conflicts. For example, the same agency
official(s) responsible for executing and advising on personnel actions
may not also be responsible for managing, advising, or overseeing the
EEO pre-complaint and complaint process. Clearly, it is a conflict of
interest on its face for an EEO investigator or a complaints manager
to be responsible for processing a complaint in which they have been
identified as the responsible official in the discrimination against the
complainant. Smith v. U.S. Postal Service, EEOC Request No. 05920962
(September 7, 1993). As the record in this case discloses that the HR
Director was the official who issued the final agency decision, we find
that there is a conflict of interest.
Notwithstanding our decision that the HR Director's involvement in the
processing of appellant's complaint represents a conflict of interest,
we find that there is no evidence in the record suggesting that his
participation in the EEO process resulted in prejudice to appellant.
See Driscoll v. Department of the Navy, EEOC Request No. 05940179
(December 21, 1994) (although apparent conflict of interest where signer
of offer of full relief also signed appellant's notice of termination, no
conflict found because no prejudice to appellant resulted from apparent
conflict). In so finding, we note that the EEO Counselor who provided
appellant counseling on this complaint and established the record was
not identified as a responsible official. Additionally, we find that
there is sufficient evidence in the record and in the documentation
provided by appellant on appeal on which to base our decision. Finally,
we find no basis in the record to support appellant's general assertion
that because the HR Director is also the EEO Administrator, the agency's
EEO process was biased against her.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that states the same claim
that is pending before or has been decided by the agency or Commission.
We concur with the agency's determination that allegation (1) states the
same claim as appellant previously raised in Agency No. 98-00681-N01.
In both instances, appellant alleged that her transfer to the Retail
Division was discriminatory. Consequently, we find that dismissal of
allegation (1) was proper.<2>
However, we find that the agency erred in dismissing allegation (2).
Therein, appellant alleged that she was subjected to discrimination
when the position into which she was placed was improperly classified
such that it did not accurately reflect the duties which she performed.
Specifically, appellant alleged that although the agency classified
appellant's new position at the NF-4, supervisory level, she was
performing the duties of a non-supervisory, non-managerial position.
As the focus of allegation (2) concerns the mis-classification of her new
position rather than the transfer itself, we find that it is factually
distinct from her previous complaint.
EEOC Regulation 29 C.F.R. �1614.107(a) 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. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
We find that allegation (2) states a claim under the EEOC regulations.
Therein, appellant alleged that in reprisal for prior EEO activity
the agency caused harm to the terms, conditions or privileges of her
employment, i.e., that she was forced to perform work which was below
the NF-4 grade level. Accordingly, we find that the agency's dismissal
of allegation (2) for failure to state a claim was improper.
In allegation (3), appellant alleged that she was subjected to
discrimination when management withheld an MWR 500 form, and a Personnel
Action form, dated October 9, 1997, was later altered. It appears that
these forms relate to the reassignment, which is the subject of allegation
(1). Appellant failed to disclose, however, how these actions affected
the terms, conditions or privileges of her employment. Appellant did
not allege that she required the MWR 500 form to perform her duties, and
the record discloses that the changes made to the Personnel Action form
did not materially affect appellant in the performance of her position.
Consequently, we find that allegation (3) was properly dismissed pursuant
to 29 C.F.R. �1614.107(a).
In allegation (4), appellant alleged that she was discriminated against
when the MWR Human Resources Director directed appellant's grievance
request to step one instead of step three of the administrative grievance
procedure. The Commission has held that an employee cannot use the EEO
complaint process to lodge a collateral attack on another proceeding.
See Wills v. Department of Defense , EEOC Request No. 05970596 (July 30,
1998); Kleinman v. USPS, EEOC Request No. 05940585 (September 22,
1994); Lingad v. USPS, EEOC Request No. 05930106 (June 24, 1993).
The proper forum for appellant to have raised her challenges to actions
which occurred during the grievance procedure was within that process
itself. It is inappropriate to now attempt to use the EEO process to
collaterally attack actions which occurred during the administrative
grievance procedure. Based on the foregoing, we find that the agency's
dismissal of allegation (4) was proper.
Accordingly, the agency's decision to dismiss allegations (1), (3)
and (4) is AFFIRMED for the reasons set forth herein. The agency's
decision to dismiss allegation (2) is hereby REVERSED. Allegation (2)
is REMANDED to the agency for further processing in accordance with this
decision and the Order below.
ORDER
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
of the appropriate rights within one hundred fifty (150) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request. In complying with this
Order, the agency shall ensure that the HR Director has no direct
involvement with the processing of the remanded allegations.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision 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 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.
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. 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 filed your appeal with the
Commission. 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 (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:
Sept. 17, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
1We note that one allegation regarding the agency's failure
to respond to appellant's request to recredit 37.2 hours of
annual leave lost in January 1998, was remanded for counseling.
By decision dated June 30, 1998, the agency dismissed this
additional allegation as moot. The Commission has no record
that appellant filed an appeal of this June 30, 1998 decision
and, consequently, the propriety of that dismissal will not be
addressed herein.
2Since we are affirming the agency's dismissal of allegation (1) on
the grounds that it states the same claim that was pending before or
decided by the agency or Commission, we will not address the agency's
alternative grounds for dismissal, i.e., that it failed to state a claim.