01975642
11-10-1998
Marshall S. Fritz, Appellant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Marshall S. Fritz, )
Appellant, )
)
v. ) Appeal No. 01975642
) Agency No. IHS-037-97
Donna E. Shalala, )
Secretary, )
Department of Health and )
Human Services, )
Agency. )
______________________________)
DECISION
On July 14, 1997, appellant filed a timely appeal with this Commission
from a final agency decision ("FAD") dated June 11, 1997, pertaining
to allegations 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., and Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. �791 et seq. which appellant raised in a letter to the Agency's
Secretary.<1> The FAD characterized appellant's complaint as alleging
that he was subjected to discrimination on the bases of race (White),
religion (Jewish), sex (male), physical disability (respiratory condition
and speech impediment), and in reprisal for prior EEO activity when:
In 1993, an audit of appellant's time and attendance ("T&A audit)
was conducted;
Appellant was not provided an award for the March 6, 1990 suggestion
that he submitted and which was the subject of a review by the Assistant
Secretary for Health, and the Office of the Inspector General;
The agency breached a Memorandum of Agreement ("MOA") entered into
by the parties on March 22, 1995, pursuant to the agency's negotiated
grievance procedure;
Several Freedom of Information Act ("FOIA") requests appellant filed
in 1996, were delayed, ignored, or not properly processed;
Since 1993, the agency did not assist appellant in finding employment
outside the agency as required under Public Law 96-135; and
Since 1993, appellant was subjected to acts of harassment and reprisal
by the agency's Office of the Director.
On June 11, 1997, the agency issued a FAD accepting allegations (2),
(5), and (6) for investigation, and dismissing allegations (1) and (3)
pursuant to EEOC Regulation 29 C.F.R. �1614.107(d), for raising the same
matters that were the subject of grievances in a negotiated grievance
procedure that permits allegations of discrimination, and allegation
(4), pursuant to 29 C.F.R. �1614.107(e), on the grounds that it was
rendered moot by appellant's subsequent receipt of the information he
sought through his FOIA requests.
On appeal, appellant contends that the agency improperly processed his
complaint. Specifically, appellant asserts that the agency failed to
provide appellant the opportunity to fully identify all of the allegations
in his complaint because it focused its attention on appellant's letter
to the Agency's Secretary, which the agency accepted as appellant's
formal complaint. Appellant asserted that he also alleged that he
was subjected to discrimination on the bases of race (White), religion
(Jewish), sex (male), physical disability (respiratory condition and
speech impediment), and in reprisal for prior EEO activity when:
The agency subjected appellant to a pattern of unfair application of
the religious leave compensatory time guidelines and denial of credit
for leave previously approved;
Appellant was denied compensatory time for overtime worked;
Appellant was denied annual and sick leave;
Appellant was the victim of a continuing pattern of discrimination
by various offices throughout the agency because he was Jewish and
non-Indian;
The agency denied appellant reasonable accommodation for his disability
in the form of improved office air quality;
The agency improperly responded to a Fair Labor Relations Authority
("FLRA") investigation concerning the T&A audit;
The agency took from appellant duties and assignments which were
previously his responsibility;
The agency denied appellant administrative leave for attending union
training sessions;
Agency officials provided false testimony concerning appellant at the
FLRA hearing concerning the T&A audit;
The agency falsely denied that appellant had ever submitted an employee
suggestion or that it had been adopted;
In November 1996, the agency gave its annual EEO award to a management
employee who made discriminatory comments about Jews over an extended
period of time;
The agency's director was insensitive to Jewish religious observances;
From 1988 to 1995, a co-worker committed instances of discrimination
against Jewish employees;
The agency was in breach of a March 23, 1990 grievance settlement;
Two agency employees threatened appellant with bodily harm;
Appellant was subjected to a continuing hostile work environment;
The agency denied appellant job-related training over a long and
continuing period of time; and
Appellant's request to work at home due to his respiratory problems with
the office air quality was denied.
In support of his assertions, appellant provided a copy of his original
letter to the agency's Secretary, dated August 22, 1996, in which he
raised allegations (1) through (10); a memorandum dated December 5,
1996, which identified allegations (15) through (18); a second letter
to the agency's Secretary, dated December 18, 1996, which identified
allegations (19) and (20); and a second memorandum, dated March 19, 1997,
which identified allegations (11) and (21) through (24). In an affidavit
dated August 29, 1997, appellant further asserts that he orally advised
the EEO Counselor of the issues identified as allegations (12) through
(14).
The Agency's Failure to Address Certain Allegations
The Commission notes that the agency failed to address allegations
(7) through (24), and the Commission deems the agency's action to be
tantamount to a dismissal of those matters. Appellant's submissions
on appeal reveal that the EEO Office was notified of allegations (7) -
(11) and (15) - (24) by letters and memoranda dated August 22, 1996,
December 5, 1996, December 18, 1996, and March 19, 1997. Additionally,
appellant provided an August 29, 1997 affidavit stating that he discussed
allegations (12) through (14) with an EEO Counselor. By contrast,
the agency provided no evidence rebutting appellant's contention
that he raised these issues. Accordingly, with the exception of the
allegations identified below, the agency's dismissal of these allegations
was improper.
Failure to State a Claim
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).
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. Kleinman v.
USPS, EEOC Request No. 05940585 (September 22, 1994); Lingad v. USPS,
EEOC Request No. 05930106 (June 24, 1993). The record shows that
appellant entered into the settlement agreements identified in allegations
(3) and (20) through use of the agency's negotiated grievance procedure.
Accordingly, the proper forum for appellant to have raised his allegations
of breach of those agreements was through the negotiated grievance
procedure itself. It is inappropriate to now attempt to use the EEO
process to collaterally attack the alleged breach of terms of settlement
agreements reached through use of the negotiated grievance procedure.
Consequently, allegations (3) and (20) were properly dismissed pursuant
to 29 C.F.R. �1614.107(a).
The Commission has held that it does not have jurisdiction over
the processing of FOIA requests. Instead, persons having a dispute
regarding such requests should bring any appeals about the processing of
his or her FOIA requests under the appropriate FOIA regulations. Gaines
v. Department of the Navy, EEOC Request No. 05970386 (June 12, 1997).
In the instant case, therefore, appellant's allegation that the agency
improperly handled his FOIA request fails to state a claim within
the purview of the EEOC regulations at 29 C.F.R. �1614. Accordingly,
allegation (4) was properly dismissed for failure to state a claim.
With regard to allegations (17), (18), and (21), appellant failed to
allege that he suffered harm with respect to the terms, conditions
or privileges of his employment as a result of the actions described
therein. Moreover, the Commission has repeatedly found that remarks
or comments unaccompanied by a concrete agency action are not a direct
and personal deprivation sufficient to render an individual aggrieved
for the purposes of Title VII. See Backo v. U.S. Postal Service, EEOC
Request No. 05960227 (June 10, 1996); Henry v. U.S. Postal Service, EEOC
Request No. 05940695 (February 9, 1995). Accordingly, allegations (17),
(18), and (21) were properly dismissed pursuant to 29 C.F.R. �1614.107(a).
Same Claim Pending Before the Agency
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part,
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. In the instant case, the record indicates
that allegations (12) and (15) identify additional evidence concerning
the T&A audit, i.e., that the agency provided false information in the
FLRA investigation and hearing of the matter. Similarly, allegation
(16) merely identifies the agency's position concerning allegation (2).
As a result of the foregoing, we find that allegations (12), (15), and
(16) state the same claims that were already identified in this complaint,
and were properly dismissed by the agency.
Matters Raised in a Grievance
EEOC Regulation 29 C.F.R. �1614.301(a) states that when a person is
employed by an agency subject to 5 U.S.C. �7121(d) and is covered by a
collective bargaining agreement that permits allegations of discrimination
to be raised in a negotiated grievance procedure, a person wishing to file
a complaint or grievance on a matter of alleged employment discrimination
must elect to raise the matter under either part 1614 or the negotiated
grievance procedure, but not both. An aggrieved employee who files
a grievance with an agency whose negotiated agreement permits the
acceptance of grievances which allege discrimination may not thereafter
file a complaint on the same matter under this part 1614 irrespective
of whether the agency has informed the individual of the need to elect
or whether the grievance has raised an issue of discrimination.
The record shows that allegations (1) and (14) were the subjects of
two grievances appellant filed, identified as Case Nos. WA-CA-40346
and WA-CA-60484, respectively. The agency dismissed allegation (1) on
the grounds that appellant raised the matter in a negotiated grievance
procedure that permits allegations of discrimination. However, the
agency failed to include a copy of the agency's collective bargaining
agreement or any other evidence showing that its negotiated grievance
procedure permits allegations of discrimination to be raised therein.
Thus, the agency failed to substantiate the bases for its final decision.
See Marshall v. Department of the Navy, EEOC Request No. 05910685
(September 6, 1991).
Accordingly, the agency's decision to dismiss allegations (3), (4),
(12), (15), (17), (18), (20), and (21) was proper and is AFFIRMED
for the reasons set forth herein. The agency's decision to dismiss
allegations (1) and (14) is hereby VACATED. The agency's decision to
dismiss allegations (7), (8), (9), (10), (11), (13), (19), (22), (23),
and (24) was improper, and is hereby REVERSED. Those allegations are
REMANDED to the agency for further processing in accordance with this
decision and the Order below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations 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.
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. �1614.10.
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:
November 10, 1998
____________________________
DATE Ronnie Blumenthal, Director
1The agency was unable to supply a copy of a certified mail return
receipt or any other material capable of establishing the date
appellant received the agency's final decision. Accordingly,
since the agency failed to submit evidence of the date of receipt,
the Commission presumes that appellant's appeal was filed within
thirty (30) days of receipt of the agency's final decision. See,
29 C.F.R. �1614.402.