Larry R. James, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionJan 19, 2000
01991964 (E.E.O.C. Jan. 19, 2000)

01991964

01-19-2000

Larry R. James, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Larry R. James, )

Complainant, )

)

v. ) Appeal No. 01991964

) Agency No. DON 98-55304-002

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

____________________________________)

DECISION

On January 7, 1999, complainant filed a timely appeal with this Commission

from a final agency decision (FAD) issued on December 9, 1998, pertaining

to his 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.<1> The Commission accepts complainant's appeal in accordance

with EEOC No. 960.001.

ISSUE PRESENTED

The issue presented herein is whether the agency properly dismissed the

instant complaint for failure to state a claim.

BACKGROUND

The record reflects that on January 30, 1998, complainant initiated

contact with an EEO Counselor. During the counseling period, complainant

stated he was being retaliated against for prior EEO activity when: (1)

complainant was not provided the investigators schedule with regard to

three of his prior complaints (Agency Nos. 96-55304-001, 97-55304-001,

and 97-55302-002); (2) he was not provided with the opportunity to

rebut management's articulated non-discriminatory reasons for three

of his prior complaints (Agency Nos. 96-55304-001, 97-55304-001, and

97-55302-002); (3) management placed complainant on administrative leave

while the investigator was onsite to investigate three of his prior

complaints (Agency Nos. 96-55304-001, 97-55304-001, and 97-55302-002);

(4) complainant was restricted from using official time as an EEO

representative from September 13, 1996 to August 23, 1997; (5) from July

1996 to August 23, 1997, a management official withheld correspondence by

another official that was detrimental to the reputation of an employee

whom complainant was representing; and (6) the agency failed to comply

with the processing time limits for his prior EEO complaints (Agency

Nos. 96-55304-001, 97-55304-001, and 97-55302-002).

Counseling failed, and on April 7, 1998, complainant filed a formal

complaint claiming that he was the victim of unlawful employment

discrimination in reprisal for his prior EEO activity. The formal

complaint was comprised of the matters for which complainant underwent

EEO counseling, discussed above.

On December 9, 1998, the agency issued a final decision dismissing the

present complaint for failure to state a claim. The agency found that

complainant failed to demonstrate how the aforementioned incidents

rendered him an �aggrieved employee�.

ANALYSIS AND FINDINGS

Volume 64 Fed. Reg. 37644, 37656 (1999) (to be codified as 29

C.F.R. �1614.107(a)(8)) provides that the agency shall dismiss an

entire complaint that alleges dissatisfaction with the processing of

a previously filed complaint (spin-off complaint).<2> In the instant

case, complainant's claims (1), (2), (3), and (5) concern what he

considers improper handling of previous EEO complaints. Therefore,

under the Commission's regulations, the agency is required to dismiss

complainant's claims of improper processing. When claims of improper

processing are raised, the complainant should be referred to the agency

official responsible for the quality of complaints processing, and the

agency should earnestly attempt to resolve any dissatisfaction with the

complaints process as early and expeditiously as possible. EEOC-MD 110

(5-25), as revised, November 9, 1999. Complainant is therefore advised

to contact an official in the agency's EEO office, if he believes that

any complaint has been improperly processed.

In claim (4), complainant alleged that he was denied official time

to serve as an EEO representative. EEOC-MD 110 (6-15), as revised,

November 9, 1999, provides that both a complainant and the representative,

if they are employees of the agency where the complaint arose, are

entitled to a reasonable amount of official time. Any reasons for an

agency's denial of official time should be fully documented and made

a part of the complaint file. Since the improper denial of official

time is a violation of EEOC Regulations and can be remedied, clearly it

is a processable claim. Furthermore, we note that since the improper

denial of official time is a regulation violation, whether the denial

was motivated by discrimination is not relevant. Accordingly, we find

that the agency's dismissal for failure to state a claim was improper.

Claim (4) is hereby REMANDED for further processing.

With regard to claim (5), we find that the agency's dismissal for failure

to state a claim was proper. Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to

be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(1)) provides,

in relevant part, that an agency shall dismiss a complaint 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,

.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 22, 1994). Complainant alleged that a management

official withheld correspondence written by another official that was

detrimental to the reputation of an employee whom complainant represented.

Clearly, any injury caused by the action in question belonged to the

other employee, not complainant. Since complainant was not aggrieved

by the action in question, he failed to state a claim.

CONCLUSION

The agency's dismissal of claims (1), (2), (3), and (5) is hereby

AFFIRMED. The dismissal of claim (4) is hereby REVERSED. Claim (4)

is hereby REMANDED to the agency for further processing.

ORDER

The agency is hereby ORDERED to take the following actions:

1) Within fifteen (15) calendar days of the date this decision, the

agency shall notify complainant that he has fifteen (15) calendar days

within which to specifically identify each request for official time

made during the relevant time period, how much time was requested,

whether any time was granted, and what actions complainant took when

any requests were denied, i.e., whether he took leave, etc.;

2) Following complainant's response, the agency shall supplement the

record with statements from any officials involved in complainant's

official time requests, documentation regarding the denial or provision

of official time to complainant, and any other relevant evidence regarding

the requests for official time at issue;

3) Within sixty (60) calendar days of the date this decision becomes

final, the agency shall issue a determination regarding complainant's

claim of the denial of official time. The agency shall notify complainant

of the right to appeal the agency's determination to the Commission.

A copy of the notice to complainant to provide information and a copy of

the final determination must be to the Compliance Officer as referenced

below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

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 (T1199)

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:

January 19, 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:

_______________ __________________________

Date Equal Employment Assistant1On November 9, 1999, revised

regulations governing the EEOC's federal sector complaint process

went into effect. These regulations 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. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.

2Although there was no specific provision in the regulations requiring

agencies to dismiss spin-off complaints prior to the November 9th

revisions, there was no provision in either the regulations or the

management directive permitting the filing of a separate complaint on

this issue. See 64 Fed. Reg. 37644, 37645 (1999).