Paula Fisk, Appellant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionNov 24, 1998
01981164_r (E.E.O.C. Nov. 24, 1998)

01981164_r

11-24-1998

Paula Fisk, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Paula Fisk, )

Appellant, )

) Appeal No. 01981164

v. ) Agency Nos. 97-60259-005

) 97-60259-006

Richard J. Danzig, ) 97-60259-007

Secretary, ) 97-60259-008

Department of the Navy, ) 97-60259-009

Agency. )

______________________________)

DECISION

On November 18, 1997, appellant filed a timely appeal with this Commission

from a final agency decision ("FAD") received by her on October 23,

1997, pertaining to her complaints 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., �501 of the Rehabilitation Act of 1973, as

amended, 29 U.S.C. �791 et seq., and the Age Discrimination in Employment

Act of 1967 ("ADEA"), as amended, 29 U.S.C. �621 et seq. The agency

consolidated appellant's complaints pursuant to 29 C.F.R. �1614.606.

In her complaints, appellant alleged that she was subjected to

discrimination on the bases of sex (female), age (DOB 2/17/46), mental

disability (depression), physical disability (angina, migraine headaches,

eating disorder, TMJ, herniated cervical discs, neck, back, and chest

pains), and in reprisal for prior EEO activity when:

On March 24, 1997, the former Commanding Officer ("CO") at appellant's

work location provided information to the Defense Finance and Accounting

Service which alleged that appellant owed $5358.35 for the pay period

ending December 20, 1996;

The CO did not assist appellant with regard to complaints she raised

concerning an Employee Relations Specialist who allegedly made false

statements to the Department of Labor, a United States Senator, and the

agency's Human Resources Office, resulting in the denial of appellant's

workers' compensation benefits;

On March 17, 1997, an agency attorney violated appellant's right to

privacy by sending appellant's charges concerning the improper processing

of her prior EEO complaints to the individuals who were the subject of

appellant's charges;

On unspecified dates, the CO harassed and retaliated against appellant by

not providing immediate remedial intervention to stop the retaliation

directed toward appellant by CO's subordinate chain of command,

specifically, the subordinates provided false information regarding

appellant's Workers' Compensation claim;

From January 1993, to December 20, 1996, the CO failed to make available

to appellant written materials concerning the variety of EEO programs

and remedial procedures, i.e., the agency failed to properly distribute

materials regarding the use of the EEO process;

On an unspecified date, an agency official retaliated against appellant

by failing to maintain a continuing affirmative employment program to

identify and eliminate discriminatory practices and policies within

the agency;

On an unspecified date, another supervisor ("S2") refused to intervene on

appellant's behalf and retaliated against appellant for making allegations

concerning S2's colleagues;

On January 28, 1997, the agency sent a copy of its notice of receipt of

her discrimination complaint to her former attorney; and

On unspecified dates, the agency did not provide appellant proper

counseling on the EEO allegations she presented to an EEO Counselor from

March through May 19, 1997.

On October 21, 1997, the agency issued a final decision accepting

allegation (a) for investigation. The FAD dismissed allegations (b)

through (f), pursuant to EEOC Regulation 29 C.F.R. �1614.107(a),

for failure to state a claim; allegation (g), pursuant to 29

C.F.R. �1614.107(a), for raising the same claim that was pending before or

decided by the agency or Commission; and allegations (h) and (i), pursuant

to 29 C.F.R. �1614.107(e), on the grounds that they were rendered moot.

Further, the agency dismissed the basis of reprisal for whistleblowing.

The Commission notes that appellant's employment with the agency concluded

on December 20, 1996.

EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss

a complaint which 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).

In the instant case, we find that appellant failed to show that she

suffered harm with respect to the terms, conditions, or privileges of

her employment as a result of the incidents of alleged discrimination

identified in allegations (b) through (i). Allegations (c), (e), and

(i) concern alleged improprieties by the agency in the processing of

appellant's EEO complaints. The Commission has held that allegations

which relate to the processing of previously filed complaints do not state

independent allegations of employment discrimination. See Kleinman v.

U.S. Postal Service, EEOC Appeal No. 05940579 (September 22, 1994);

Story v. U.S. Postal Service, EEOC Appeal No. 01965883 (March

13, 1997). If a complainant is dissatisfied with the processing of

her prior complaints, she should be referred to the agency official

responsible for the quality of complaints processing. Agency officials

should earnestly attempt to resolve dissatisfaction with the complaints

process as early and expeditiously as possible. EEOC Equal Employment

Opportunity Management Directive for 29 C.F.R. �1614, chap.4, pages 8 and

9 (October 1992). Consequently, the agency properly dismissed allegations

(c), (e), and (i) pursuant to 29 C.F.R. �1614.107(a).

Allegations (b) and (d) concern the CO's alleged failure to assist

appellant regarding an Employee Relations Specialist who allegedly made

false statements to the Department of Labor, and others within the context

of appellant's Office of Workers' Compensation Programs ("OWCP") claim.

Appellant alleged that the CO's actions resulted in the denial of benefits

she was due. We find that the foregoing represents a collateral attack

on the OWCP process. 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 proper forum for appellant to have raised her challenges to actions

which occurred during the processing of her OWCP claim was with OWCP

itself. It is inappropriate to now attempt to use the EEO process to

collaterally attack actions which occurred during the processing of her

OWCP claim. Accordingly, allegations (b) and (d) were properly dismissed

for failure to state a claim.

In allegation (f), appellant alleged that an agency official failed to

maintain a continuing affirmative employment program. We find that

appellant failed to specify a personal harm that she suffered with

respect to a term, condition, or privilege of her employment as a result

of this failure. Accordingly, the agency's dismissal of allegation (f)

was proper.

The agency dismissed allegation (g) on the basis that it the same

claim that was pending before or decided by the agency or Commission.

However, the agency failed to provide in the record a copy of the previous

complaint, or any other evidence supporting its finding. Thus, the agency

has 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 dismissal of allegation (g) was improper.

In allegation (h), appellant alleged that she was subjected to

discrimination when the agency sent her former attorney a copy of its

notice of receipt of appellant's discrimination complaint. Appellant

failed to show how this action caused her to suffer harm to the terms,

conditions, or privileges of her employment as a result of the agency's

action. Consequently, allegation (h) was properly dismissed for failure

to state a claim.

Finally, we note that the dismissal of the basis of reprisal for

whistleblowing was proper. EEOC Regulation 29 C.F.R. �1614.101(b)

provides that no person shall be subject to retaliation for opposing any

practice made unlawful by Title VII of the Civil Rights Act (Title VII)

(42 U.S.C. �2000e et seq.), the Equal Pay Act (29 U.S.C. �206(d)) or the

Rehabilitation Act (29 U.S.C. �791 et seq.) or for participating in any

stage of administrative or judicial proceedings under these statutes.

The regulations do not cover retaliation for whistleblowing.

Accordingly, the agency's dismissal of allegations (b) - (f), (h),

and (i), and the basis of reprisal was proper and is AFFIRMED for the

reasons set forth herein. The agency's decision to dismiss allegation

(g) was improper, and is hereby REVERSED. Allegation (g) is 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 allegation in accordance

with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant

that it has received the remanded allegation 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. �1614.410.

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 24, 1998

____________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations