01a50913
03-22-2005
Mary Catlin, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Mary Catlin v. Department of the Navy
01A50913
March 22, 2005
.
Mary Catlin,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A50913
Agency No. 04-63387-10426
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated September 30, 2004, dismissing her complaint of unlawful
employment discrimination. In her complaint, complainant alleged
that she was subjected to discrimination on the bases of sex (female),
disability (cervical fusion), age (date of birth: September 30, 1949),
and reprisal for prior EEO activity when:
In April 2004, she received a copy of a letter submitted by the Utility
Planning Systems Supervisor, which she believes is a false report to
the Department of Labor, and resulted in denial of benefits related to
a back injury of June 21, 2003.
In August 2004, she received a letter from the Supervisory Electrical
Engineer stating that she would face potential termination if she did
not return to work.
On an unspecified date, the agency continuously failed to inform
complainant as to who was her supervisor.
The agency dismissed claims 1 and 3 pursuant to 29 C.F.R. �
1614.107(a)(1), for failure to state a claim. The agency dismissed
claim 2 pursuant to 29 C.F.R. �1614.107(a)(5), finding that complainant
had alleged a proposal to take a personnel action, or other preliminary
step to taking a personnel action.
The regulation set forth at 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 21, 1994).
Regarding claim 1, the Commission finds that the claim is outside
the purview of the EEO process and that the agency properly dismissed
this matter for failure to state a claim. We find that complainant
is improperly attempting to use the EEO process to collaterally attack
the outcome of the workers' compensation process. 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. United
States Postal Service, EEOC Request No. 05940585 (September 22, 1994). The
proper forum for complainant to have raised her dissatisfaction with
the processing of her workers' compensation claim is within that process.
As to claim 2, the agency stated that complainant received an August 6,
2004 letter regarding complainant's Availability for Work and a Request
for Detailed Medical Documentation. According to the letter, it was
noted that complainant had been absent from the workplace approximately
70 percent of her scheduled work shift. Additionally, it was noted
that complainant was cautioned that her continued unavailability to
perform the full range of her duties, Secretary (0A), would result in the
initiation of appropriate administrative action, up to and including her
removal from employment. Complainant does not allege that any official
personnel action resulted from the proposed removal. Therefore, we find
that the claim was properly dismissed for alleging that a proposal to
take a personnel action was discriminatory.
With respect to claim 3, we find that complainant has not established that
the alleged event resulted in a personal harm or loss to a term, condition
or privilege of her employment. Furthermore, we do not find that the
events in the complaint described by complainant are sufficiently severe
or pervasive to state a claim of discriminatory harassment. See Cobb
v. Department of the Treasury, EEOC Request No 05970077 (March 13, 1997).
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 22, 2005
__________________
Date