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).