01a53145
07-12-2005
Nilsa O. Molina, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Nilsa O. Molina v. Department of the Army
01A53145
07-12-05
.
Nilsa O. Molina,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A53145
Agency No. ARHQOSA04DEC08065
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision, issued on March 8, 2005, pertaining to her complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.,
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
On January 21, 2005, complainant filed a complaint alleging that she had
been subjected to discrimination on the bases of her age (52), disability
(manic depressive) and reprisal (previous EEO related activity).
Specifically, she alleged that:
(a) A-1, the agency EEO Officer, secured an email damaging in nature
for the sole purpose of harming complainant during an investigation of
some made up allegation of misconduct;
(b) on November 19, 2004, she was made aware that A-1 denied her first
EEO complaint without looking at the surrounding circumstances;
(c) on December 1, 2004, when she asked A-1 for the status of her case ,
and A-1 informed complainant, with malice and disregard for her health,
that "it was in the mail," as though she got pleasure from it. Also,
without regard for complainant's mental state, A-1 called and specifically
informed her "that [her] first case was going to be dismissed;" and
(d) on December 1, 2004, A-1 with malice and intent to hurt complainant
told her that A-2, Director, Equal Employment Opportunity Compliance
and Complainants Review, "told you that your discrimination was formal,
but he just failed to tell you that it was untimely."
The agency dismissed complainant's complaint on the grounds that she (1)
failed to state a claim; and (2) was merely expressing dissatisfaction
with the processing of a previously filed complaint. This appeal
followed.
Allegation (a)
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).
According to complainant, A-1 �[p]articipated in a witch-hunt headed
by the terminal commander and she help to get data to get me fired."
Complainant maintained that A-1's actions were designed to retaliate
against her for having engaged in protected EEO activity. The agency, in
dismissing allegation (a), maintained that complainant did not establish
that she suffered a harm or loss to a term, condition or privilege of
employment. To the extent that complainant is alleging discrimination
because she was subjected to an investigation of misconduct in which
A-1 was a participant, we find that she fails to state a claim.
The Commission has consistently held, for example, that being the
subject of an IG investigation does not render an individual aggrieved
under the EEOC's regulations. See Mattocks v. Department of the Navy,
EEOC Request No. 05950549 (August 29, 1996). Likewise, we find that
this is an isolated event that is not 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).
Allegations (b)(c) and (d)
EEOC Regulation 29 C.F.R. � 1614.107(a)(8) provides that an agency
shall dismiss claims alleging dissatisfaction with the processing
of a prior complaint. Dissatisfaction with the EEO process must be
raised within the underlying complaint, not as a new complaint. See
EEOC - Management Directive 110 (MD-110) 5-23, 5-25 to 5-26 (Nov. 9,
1999). The Commission finds that these three allegations all concern
complainant's dissatisfaction with the way A-1 handled the processing of
a prior complaint and therefore should not be raised as a new and separate
complaint; accordingly, these three issues were properly dismissed.
The dismissal of 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
_____07-12-05_____________
Date