Renee Wright, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency ____________________________________)

Equal Employment Opportunity CommissionFeb 28, 2000
01985589 (E.E.O.C. Feb. 28, 2000)

01985589

02-28-2000

Renee Wright, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency ____________________________________)


Renee Wright v. Department of Veterans Affairs

01985589

February 28, 2000

Renee Wright, )

Complainant, )

)

) Appeal Nos. 01985589

) 01994113

) 01994114

) 01994115

) 01994257

v. ) 01996132

) 01996748

) Agency Nos. 96-2055

) 98-0925

) 97-1098

) 98-0551

Togo D. West, Jr., ) 99-0057

Secretary, ) 99-2790

Department of Veterans Affairs, ) 99-3106

Agency )

____________________________________)

DECISION

Complainant filed seven (7) appeals with this Commission from separate

final agency decisions (FADs), pertaining to 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., 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, as amended, 29 U.S.C. �

791 et seq.<1> All of the appeals are accepted as timely in accordance

with 64 Fed. Reg. 37,644, 37, 659 (1999)(to be codified at 29 C.F.R. �

1614.405), and are consolidated for a single decision herein.<2>

BACKGROUND

01985589

On August 3, 1996, complainant filed a formal complaint of discrimination,

Agency No. 96-2055, alleging harm on the bases of sex (female), age

(date of birth April 10, 1950), and in reprisal for prior EEO activity.

In a FAD dated April 25, 1997, the agency dismissed the complaint for

failure to state a claim, and for stating the same claim raised in a prior

EEO complaint. Complainant appealed in 01974826, where the Commission

found that the agency could not have properly defined the complaint,

because the claims were "patently unclear, vague and illegible." In its

March 11, 1998 decision, the Commission vacated the FAD, and ordered

an agency EEO Counselor to meet with complainant to clarify her claims.

See Wright v. Department of Veterans Affairs, EEOC Appeal No. 01974826

(March 11, 1998).

By letter dated May 6, 1998, the agency scheduled a meeting for May 14,

1998, between complainant and an EEO Counselor as ordered in 01974826

(96-2055). Also on May 6, 1998, complainant contacted an EEO Counselor,

alleging harm from the agency's failure to comply with the order.

The same day, complainant filed a formal complaint on the bases of sex,

mental disability (stress), and reprisal concerning the agency's failure

to comply with the order.

Based on information from the May 14, 1998 counseling, the agency

issued a new FAD for 96-2055 on June 8, 1998 (FAD-1 of 01985589).

Therein, the agency defined the complaint as alleging harm when: (1)

management did not issue performance standards to complainant for the

May 1993 - May 1994 rating period; (2) management denied complainant a

copy of her May 1992 - May 1993 performance appraisal; (3) management

did not select complainant as Acting Chief of Medical Media Services;

(4) from 1992 through 1994, complainant's work was constantly scrutinized

by the former Chief of Medical Media Services; (5) in February 1994,

the Acting Chief did not select complainant for Assistant Acting Chief;

(6) the EEO Investigator of complainant's July 1, 1994 complaint failed

to address the issue of complainant not receiving a performance appraisal

and standards, and not receiving a mid-level review in October 1993;

(7) management did not provide complainant with a mid-level review

for the May 1993 - May 1994 rating period in October 1993; and (8)

complainant was subjected to hostile working conditions when the former

Chief yelled and screamed at complainant. The agency accepted claims

(1) - (4), but dismissed claims (5) - (8).

On June 10, 1998, the agency issued a FAD (FAD-2 of 01985589) pertaining

to the May 6, 1998 formal complaint alleging harassment when the agency

failed to timely comply with 01974826. In FAD-2, the agency found that

the complaint failed to state a claim. On July 7, 1998, complainant

appealed both FAD-1 and FAD-2 to this Commission in 01985589.

01994114

In 1994, complainant injured her back, and subsequently sought

benefits from the Office of Workers' Compensation Programs (OWCP).

According to complainant, the agency formally agreed on July 13, 1994,

to place complainant on light-duty. When complainant did not receive

the light-duty accommodation, she filed a complaint in 1997.<3>

Complainant filed another complaint on July 1, 1996, alleging

discrimination on the bases of sex, age, disability, and reprisal when:

(1) the EEO Manager released information regarding complainant's EEO

complaint to the agency's OWCP Manager, in the form of a Report of

Contact, dated September 16, 1994, and a response to a letter from

the Department of Labor (DOL), in violation of privacy rights and

in reprisal; (2) misleading information was given to various other

agencies without complainant's permission in reprisal; (3) the agency's

OWCP Manager violated complainant's right to privacy by releasing her

work stress statement dated October 24, 1994, Form CA-1 dated July 25,

1994, and Form CA-2 dated August 23, 1994, to the Administrative Board

of Investigation, the Chief of Staff, the Associate Chief of Staff,

Human Resource Management Service (HRMS), Risk Management, and the

Chief of Medical Media, and by informing the Administrative Board of

Investigation that complainant had not claimed sexual harassment on a

CA-2; (4) the agency's OWCP Manager collected misleading and erroneous

information from former employees and submitted it to DOL's OWCP;

(5) the agency retaliated against complainant by controverting and

interfering with workers' compensation claims that complainant filed

on July 13 and July 25, 1994; (6) the Chief of Medical Media released

the stress report to the former Chief of Medical Media; and (7) the

information released by the EEO Manager and the agency's OWCP Manager

was either incomplete or untrue and caused the denial of her OWCP claim.

The agency dismissed the complaint on May 5, 1997, and the Commission

affirmed.<4> See Wright v. Department of Veterans Affairs, EEOC Appeal

No. 01974825 (March 12, 1998).

Meanwhile, complainant contacted a counselor on February 5, 1997, Agency

No. 97-1098, regarding an alleged breach of privacy when medical records

were released to certain agency officials and to the OWCP. Complainant

also stated that the agency submitted false and untimely information

to OWCP. On March 17, 1997, complainant filed a formal complaint for

97-1098, alleging harm on the bases of race (Caucasian), color (white),

sex, national origin (American), disability, and in reprisal for prior

EEO activity.

By letter dated April 2, 1997, the agency requested additional information

regarding the matters alleged in 97-1098. Specifically, the agency

requested the date of each occurrence, a description of what occurred

on those dates, and an explanation of how the claims differ from those

filed in other complaints. Complainant received the request on April 9,

1997, but failed to respond.

The agency dismissed the complaint on March 11, 1999, defining the

issues as: (1) the OWCP manager and an agency physician, along with the

Employee Physician, accessed complainant's medical records in violation

of privacy rights; (2) (a) the agency failed to process OWCP claims

involving evidence from EEO complaints; (2) (b) involuntary disability

and constructive discharge resulted; (3) sexual harassment; (4) the OWCP

manager failed to submit the CA-8 form within five days as required by

law; (5) complainant experienced reprisal in the form of a hostile work

environment along with other witnesses in related EEO matters for having

filed previous EEO complaints; (6) the agency failed to accommodate

complainant; and (7) complainant has experienced a continued pattern

and practice of reprisal, breach of privacy, and denial of benefits.

Noting that complainant never provided necessary information to clarify

the dates of the incidents or the details of what occurred, the agency

dismissed (1) and (2)(a) for failure to state a claim. Claims (2)(b)

and (4) were dismissed because they were not raised during counseling,

and claim (3) was dismissed for alleging the same matter raised in Agency

Nos. 95-0369 and 95-1831.<5> The agency dismissed claims (5), (6), and

(7) for failure cooperate, because complainant did not provide necessary

information as requested, and was informed that her failure to respond

to the request within fifteen days could result in dismissal. Claims

(2)(a), (2)(b), and (4) also were dismissed for failure to cooperate.

Complainant appealed in 01994114 on April 20, 1999.

01994113, 01994115, 01994257, and 01996132

Although still listed as an employee, complainant had not worked at the

agency since 1995. In 1995, complainant took leave-without-pay (LWOP)

at the request of her psychiatrist.<6> By letter dated July 11, 1997,

the agency ordered complainant to undergo a psychiatric fitness-for-duty

examination. Based on the results of the examination, finding that

complainant could work only in a different division, under a different

(female, if possible) supervisor, the agency proposed to terminate

complainant's employment. In its October 3, 1997 letter of proposed

removal, the agency found that it could not find a position for which

complainant was qualified within her medical restrictions.

Complainant contacted an EEO Counselor October 3, 1997, concerning

the proposed removal. Complainant noted that she was subjected to

continual sexual harassment while working at the agency, which caused

her mental difficulties. Complainant also stated that the agency

should be trying to terminate the harasser, not her. Further, a

Form SF-50 was attached to the Counselor's Report. The form changed

complainant's start-of-federal-service date from August 31, 1985 to May

8, 1986. Complainant filed a formal complaint on December 22, 1997,

Agency No. 98-0551, on the bases of sex, physical disability, mental

disability, and in reprisal for prior EEO activity. She requested,

inter alia, compensatory damages.

On October 23, 1997, complainant filed an internal response to the

proposed termination, arguing that she was not given time to furnish her

own medical documentation and was given an illegal psychiatric exam.

Complainant explained that she had not disrupted the workplace, and

that her exam did not delve into her mental state, but only required

complainant to discuss her prior sexual harassment claims. The agency

disregarded the response and issued a notice of termination on January

13, 1998, to become effective January 23, 1998. The notice informed

complainant that she could seek disability retirement for up to one year

after her termination.

On January 20, 1998, complainant again contacted an EEO counselor

regarding her removal, Agency No. 98-0925. In counseling, complainant

noted that she had been subjected to harassment for years, but the agency

had done nothing to stop it. Complainant also contended that the agency

was unwilling to accommodate her medical needs.

On January 27, 1998, the agency requested additional information

concerning Agency No. 98-0551. Complainant received the request on

February 4, 1998, but never responded. Shortly thereafter, however,

complainant appealed her removal to the MSPB, and filed a formal complaint

regarding Agency No. 98-0925 on February 17, 1998. In her complaint,

complainant again requested compensatory damages.

The MSPB appeal was dismissed for lack of jurisdiction on September

24, 1998. The MSPB explained that the agency rescinded the removal, and

reinstated complainant while the appeal was pending. The board noted,

however, that complainant was entitled to the position from which she

was removed, unless that position was abolished through a legitimate

reorganization. Complainant petitioned this Commission for review of

the MSPB's dismissal in 03990086.

Complainant then filed a second appeal with the MSPB, claiming that

she had not been returned to the status quo ante, because she was

reinstated to a GS-4 clerk position with saved-pay, rather than her

prior GS-7 Medical Media Photographer position. On February 27, 1999,

the MSPB again dismissed the appeal for lack of jurisdiction, noting

that after the appeal was filed, the agency restored complainant to her

GS-7 position. Complainant again petitioned for review, in 03990093.

The Commission denied both petitions for review, and noted that the

matter was no longer mixed, and should be processed as an un-mixed case.

See Wright v. Department of Veterans Affairs, EEOC Petition No. 03990086

(December 23, 1999).

On October 30, 1998, complainant again contacted a counselor regarding

her removal (Agency No. 99-0057). Complainant informed the counselor

that she discussed the same issues with another EEO Counselor on January

21, 1998, and that she made the present contact to renew her complaint

because the MSPB case was dismissed.

On December 10, 1998, the agency requested additional information

concerning Agency No. 98-0925. Complainant received the request on

December 15, 1998. That same day, complainant filed a formal complaint

for Agency No. 99-0057, on the bases of sex, age, physical disability, and

reprisal. Therein, complainant frequently referred to a prior complaint

(Agency No. 98-0925), and provided additional dates and incidents for

the matters alleged in that prior complaint. Complainant raised the

following issues, without further explanation: (1) termination 1/23/98;

(2) MSPB appeal on termination dismissed on 9/24/98; (3) assignment of

duties; (4) examination/test; (5) harassment; (6) reassignment; (7)

reinstatement; (8) constructive retirement; (9) sexual harassment by

failure to accommodate; (10)suspension; (11) reprisal; and (12) working

conditions. Complainant filed another formal complaint on January 11,

1999, which the agency found to be a duplicate of the December 15,

1998 complaint for 99-0057.

On January 27, 1999, the agency issued a FAD concerning 99-0057.

In this FAD, the agency dismissed the entire complaint for stating

the same claim alleged in 98-0925 and 98-2884.<7> On April 24, 1999,

complainant appealed the dismissal to this Commission in 01994257.

Then, the agency issued a FAD for 98-0925 on March 17, 1999. Therein,

the agency defined the complaint as alleging the following: (1) violation

of ADA/Rehabilitation Act; (2) assignment of duties - failure to perform

a desk audit for accommodation on February 4, 1997 and January 23, 1998;

failure to accommodate complainant's medical condition on January 23,

1998; failure to respond to or even consider complainant's response to

proposed termination on October 23, 1997; (3) harassment - the agency

failed to take action on a known hostile work environment, used the

sexually harassing doctor's exam and post traumatic stress disorder

findings to terminate complainant, and violated 5 C.F.R. � 398; (4)

examination/test - fitness-for-duty psychiatric exam of July 17, 1998,

was used to terminate complainant on October 3, 1997 and January 23, 1998;

(5) the agency used sex as a basis for complainant's termination and

failed to accommodate complainant by keeping the harassing official; (6)

the agency-ordered psychiatric exam was harassment, violated 5 C.F.R. �

339, and was used to terminate complainant; (7) a hostile work environment

was created by harassment occurring on November 2, 1997, October 8, 1997,

September 25, 1997, October 4, 1997, October 1, 1997, and October 3,

1997, and by a November 1997 request for medical documents when the agency

already received numerous reports from September 19, 1997 to October 3,

1997; (8) reassignment - on September 19, 1997 and October 3, 1997, the

agency failed to reassign the official found by an OWCP Administrative

Judge to be harassing complainant; (9) retirement - constructive discharge

because of job related disabilities (see termination October 3, 1997 and

forced retirement of January 13, 1998 and January 23, 1998); (10) sexual

harassment - prior EEO complaints - agency used the "Sexual Harassment

M.D." report to terminate complainant; (11) suspension January 13,

1998, resulting in LWOP status; (12) termination/removal - based on

disability October 3, 1997, January 13, 1998, and January 23, 1998;

(13) time and attendance - the personnel action against complainant took

one year of service from complainant; (14) reprisal - request for leave

based on disability because the agency forced complainant to work with the

official who had harassed her; (15) working conditions - failure to finish

orthopedic fitness for duty test June 5, 1997; failure to accommodate

complainant, and failure to remove the harasser on January 23, 1998;

and (16) other - reprisal against complainant for filing OWCP benefits,

reprisal for the OWCP decision of September 19, 1997, for using OWCP to

terminate complainant on October 3, 1997 and November 15, 1997.

The agency dismissed 98-0925 in its entirety. Specifically, the agency

found no information from complainant regarding how the claims related

to one another, what occurred on the dates listed, or how complainant

suffered harm in her working conditions or work environment since she

took LWOP. Therefore, the agency found that (2), (3), (5), (7), and

(14) failed to state a claim because complainant could not have suffered

harm from unexplained incidents from 1997 - 1998. The agency also found

that (7) and (15) failed to state a claim because the agency's failure to

reassign or remove the harasser could not have harmed complainant when she

was not working. Further, the agency found that (16) failed to state a

claim because complainant never explained how her OWCP benefits related

to reprisal. The agency also consolidated several claims, noting that

(1), (2) in part, (3) in part, (4), (5) in part, (6), (9), (11), and (16)

in part, all related to complainant's termination. Regarding termination,

the agency found that although termination was proposed, complainant was

never terminated, and therefore, complainant failed to state a claim.

Finally, the agency dismissed (13) for alleging the same matter raised

in 98-0551. On April 20, 1999, complainant appealed the agency's decision

in 01994113.

The agency issued a separate FAD for 98-0551, also on March 17, 1999.

Therein, complainant's issues were defined as: (1) examination/test -

complainant given fitness-for-duty exam on July 17, 1997, which resulted

in complainant's termination on October 3, 1997; (2) harassment on July 5,

1997, August 2, 1997, September 15, 1997, September 19, 1997, September

25, 1997, October 3, 1997, October 4, 1997, October 8, 1997, October 15,

1997, October 23, 1997, and November 2, 1997; (3) retirement - complainant

was forced to retire (because of disability) and was constructively

discharged; (4) sexual harassment - conditions of employment; (5)

termination/removal - proposed termination from October 3, 1997; (6)

time and attendance -complainant was denied one year of active service;

and (7) working conditions - physical working conditions on July 5,

1997, September 15, 1997, October 5, 1997, and October 15, 1997.

In its FAD, the agency dismissed 98-0551 in its entirety. The agency

noted that complainant never responded to the agency's request for

additional information. Since the request informed complainant that her

complaint would be dismissed if she failed to respond within fifteen days,

the agency dismissed (2) and (7) for failure to cooperate. The agency

also dismissed (1), (3), (4), and (5) for failure to state a claim because

complainant was never terminated, and because the incidents alleged were

never explained adequately. Alternatively, the agency dismissed claim

(4) for stating the same claim raised in 95-0369 and 95-1831, and claim

(5) for alleging harm from a proposed action. Claim (6) was dismissed

because it was not brought to the attention of the EEO Counselor.

Complainant appealed the dismissal on April 20, 1999 in 01994115.

01996132

Complainant again sought counseling on May 14, 1999, Agency No. 99-2790,

contending that the agency's dismissals of 98-0925 (01994113) and 99-0057

(01994257) were improper. Complainant informed the EEO Counselor that

in its dismissals, the MSPB instructed complainant to seek processing

of her claim through the agency, which she did in 98-0925 and 99-0057.

On June 18, 1999, complainant filed a formal complaint on the basis of

reprisal, alleging harm from the incorrect FAD's from 98-0925 and 99-0057.

The agency dismissed 99-2790 for failure to state a claim in a FAD dated

June 25, 1999. On July 30, 1999, complainant appealed (01996132).

01996748

On June 9, 1999, complainant contacted a counselor concerning an

unauthorized change of address and an earnings/leave statement purged

of all accrued leave. Complainant then filed a formal complaint on

July 21, 1999, Agency No. 99-3106, alleging harm on the bases of sex,

age, physical disability, mental disability, and reprisal when: (1)

the agency changed complainant's address without authorization; (2) the

agency purged leave from complainant's balance, including two hours of

annual leave, forty-four hours of sick leave, and six hours of restored

leave; and (3) Termination/Removal.

The agency issued a FAD on August 11, 1999, dismissing the complaint.

The agency found that claims (1) and (2) failed to state a claim,

because they concerned nothing more than processing delays in the

paperwork to rescind complainant's termination. The agency noted that

although the recission was not completed until September 1998, it was

retroactively effective from January 12, 1998. The agency found that

since the change-of-address was corrected and all leave was restored,

complainant suffered no harm. Claim (3) was dismissed for failure to

raise the matter with an EEO Counselor, and for raising the same matter

alleged in 97-1464, 98-0051, 98-2884, and 99-0057. On August 25, 1999,

complainant appealed the dismissal of 99-3106 (01996748).

ARGUMENTS ON APPEAL

On appeal, complainant argues, inter alia, that she was harmed by

the agency's proposal to terminate her. Complainant contends that the

termination was a continuation of the harassment from which she suffered

for years. Since the matter was a "mixed case" involving rights under

both the MSPB and EEOC, complainant argues that she dutifully filed in

both forums. Complainant insists that 98-0925 (01994113) was "held

in abeyance" pending the outcome of the MSPB appeal. Once the MSPB

dismissed her appeal for lack of jurisdiction, complainant returned to

the EEO Counselor. She argues that the agency never notified her of

her rights after the MSPB dismissals.

Complainant also explains that when she was asked to provide additional

information for the prior complaints, she contacted a counselor to provide

such information. After discussing the incidents to clarify them and

provide additional information, complainant argues that she received

a new notice-of-right-to-file-a-formal-discrimination- complaint, and

filed each formal complaint in order to keep the new information from

being disregarded. Therefore, contends complainant, 01994113 (98-0925)

and 01994257 (99-0057) are companion cases, with 01994257 containing

information to clarify 01994113.

Complainant asserts that the agency's down-grade of her to a GS-4

position was another act of harassment, only taken back after complainant

filed with the MSPB. She contends that the agency should have made the

harasser take a down-grade (or face removal) so that complainant could

regain her original position. Further, complainant notes that the agency

proposed her termination in part because the medical documentation did

not support her absences, but then found more than enough evidence to

find complainant medically unsuitable (and unable to be accommodated).

Complainant also claims that she was harmed in 01996748 because she was

denied the use of her accrued annual and sick leave until the information

was corrected, and did not have access to her "TSP" (retirement) account

during the period that her address was incorrect. Complainant argues

that she did not receive back-pay to the date of her January 23, 1998

termination, and was not restored to employment in September 1998.

Further, complainant argues that the change in her beginning service

date negatively affected calculations for her retirement benefits, FERS,

Social Security benefits, and RIF standing.

In response, the agency notes that complainant filed numerous claims

regarding the same issues. The agency requests consolidation of the

complaints, and dismissal for abuse of process.

III ANALYSIS AND FINDINGS

01985589

EEOC Regulations require the dismissal of complaints that involve

dissatisfaction with the processing of prior complaints. See 64

Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter cited

as 29 C.F.R. � 1614.107(a)(8)). Such matters should be raised in the

underlying complaints, and not through a new complaint of discrimination.

See EEOC - Management Directive 110 (as revised November 9, 1999),

5-26 to 5-27.

In FAD-2 of 01985589, complainant is attempting to dispute the processing

of a complaint by filing a new complaint. Accordingly, dismissal is

appropriate pursuant to 29 C.F.R. � 1614.107(a)(8).

FAD-1 concerns the partial dismissal of a discrimination complaint.

Under the November 9, 1999 revisions to EEOC Regulations, complaints

involving the dismissal of some, but not all claims in a complaint may

be reviewed by an EEOC Administrative Judge (AJ), but are not appealable

until final action is taken on the accepted portion of the complaint.

See 29 C.F.R. � 1614.107(b). Therefore, the dismissed portion of FAD-1

from 01985589 must be remanded to the AJ for consolidation with the

accepted portion of the complaint.

01994114

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 that the agency shall

dismiss a complaint that states the same claim that is pending before or

has been decided by the agency or Commission. In 01994114, complainant

challenges the propriety of decisions made by OWCP, and of the agency's

actions in representing its interest in claims (1), (2)(a), (2)(b), and

(4). Complainant raised the same matters in 01974825. Accordingly,

claims (1), (2)(a), (2)(b), and (4) should be dismissed for alleging

the same matter raised in 01974825.

Similarly, claim (3) has been addressed previously. The agency provided

a prior complaint concerning sexual harassment, Agency No. 95-0369.

The Commission notes that complainant has not been at her work-site

since 1995, and therefore, finds that complainant could not have

suffered from a hostile work environment since 1995. Further, the

Commission notes that the agency requested additional information from

complainant, but she failed to provide any information to explain the

incidents she alleged. As stated, the present claim does not state a

justiciable claim. Accordingly, claim (3) must involve the same matters

alleged in the 1995 claim, which was properly dismissed pursuant to 29

C.F.R. � 1614.107(a)(1).

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 29 C.F.R. � 1614.107(a)(7)) provides for the dismissal of a

complaint where the agency has provided the complainant with a written

request to provide relevant information, and the complainant has

failed to respond to the request within fifteen days of its receipt

or the complainant's response does not address the agency's request,

provided that the request included a notice of the proposed dismissal.

The regulation further provides that, instead of dismissing for failure

to cooperate, the complaint may be adjudicated if sufficient information

for that purpose is available.

Complainant received a request for information on April 9, 1997, informing

complainant that failure to respond within fifteen days could result in

dismissal. As stated, complainant's claim of "hostile work environment,"

is insufficient for the agency to adjudicate, and complainant never

clarified the claim when she was given the opportunity. Accordingly, the

agency's dismissal of claim (5) for failure to cooperate was appropriate.

Although claim (6) also was dismissed for failure to cooperate, the

Commission finds that it is more properly analyzed for whether it

states the same claim pending in another case. Claim (6), regarding

the agency's failure to accommodate complainant, is the same claim

accepted in Agency No. 97-1098. See supra note 3. Accordingly, claim

(6) is properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).

Finally, in claim (7), complainant alleges harm from breaches of

her privacy. The Privacy Act, 5 U.S.C. � 552(g)(1), provides an

exclusive statutory framework governing the disclosure of identifiable

information contained in federal systems of records and jurisdiction

rests exclusively in the United States District Courts for matters

brought under the provisions of the Privacy Act. Bucci v. Department

of Education, EEOC Request Nos. 05890289, 05890290, 05890291 (April

12, 1989). The Commission has no authority to decide alleged breaches

of the Privacy Act. Therefore, claim (7) fails to state a claim.

01994113, 01994115, 01994257, and 01996132

The Commission finds that complainant first filed a complaint concerning

the proposed removal, the fitness-for-duty examination, harassment,

sexual harassment, and change in service time (01994115). While this

complaint was pending, the proposed removal was effected on January 13,

1998, to begin on January 23, 1998. Complainant then filed a second

complaint concerning her removal (01994113), and also filed an appeal

with the MSPB the same day.

The agency should have advised complainant that she cannot file both a

mixed case complaint (with EEOC) and a mixed case appeal (with MSPB) on

the same matter. See 29 C.F.R. � 1614.302(b). Evidently, complainant

received no such guidance, and filed in both forums. Nonetheless,

complainant's appeal of her removal was treated as an election of the

MSPB process, and the MSPB proceeded to review the case. When the

MSPB initially decided that it lacked jurisdiction over the matter on

September 24, 1998, complainant contacted a counselor and filed a third

formal complaint (01994257) shortly thereafter.

Under EEOC Regulations, the agency should have informed complainant of

her right to elect either an EEOC Administrative Judge, or an immediate

final decision on the merits of her complaint once the MSPB dismissed

her appeal for lack of jurisdiction. See 29 C.F.R. � 1614.302(b).

It appears that complainant was not informed of her options, and filed

numerous complaints in order to secure her rights under the EEO process

once the MSPB dismissed the appeals. Nonetheless, the claims concerning

the termination were being processed, and as complainant admits on appeal,

were being held in abeyance pending the outcome of the MSPB appeals.

(1) Termination

In 01994115, complainant alleged harm from the proposed termination in

claim (5). The Commission notes that when a complaint is filed on a

proposed action and the agency subsequently proceeds with the action,

the action is considered to have merged with the proposal. See Siegel

v. Department of Veterans Affairs, EEOC Request No. 05960568 (October 10,

1997); Charles v. Department of the Treasury, EEOC Request No. 05910190

(February 25, 1991). Therefore, the October 3, 1997 proposed action,

and the January 23, 1998 termination, need not be raised in separate

claims. They are considered to be the same matter. Therefore, claim

(5) of 01994115 is more properly stated as follows: Complainant was

terminated from the agency for discriminatory reasons.

The agency found in its FADs that complainant was not harmed because she

was never terminated. However, the record reveals that complainant did

in fact lose her position, and requested compensatory damages for the

harm suffered. Consequently, complainant was aggrieved. Therefore,

claim (5) of 01994115 must be accepted as defined above.

Claim (1) involves a restatement of the claim that complainant was

terminated for discriminatory reasons. Each possible reason for that

termination does not give rise to a separate claim, but must be addressed

within the claim of discriminatory termination. Accordingly, claim (1)

is incorporated into claim (5).

The other claims involving complainant's termination, state the same

claim as claim (5) of 01994115, and must be dismissed. The evidence

of discriminatory termination raised as separate claims in several

complaints, must be viewed as evidence of discriminatory termination,

but does not state an independent claim. These claims are as follows:

01994113 -- (1); (2) and a portion of (15) concerns the agency's failure

to adequately accommodate complainant, which led to termination when the

agency found no available position for complainant within her medical

restrictions; (3) a portion of this claim concerns the agency's use of

the fitness-for-duty report to terminate complainant; (4) (6), and (10)

concerns use of the fitness-for-duty report to terminate complainant;

(5) concerns the agency's termination of complainant on the basis of sex;

(7) a portion of this hostile work environment claim concerns October 3,

1997 (the date of the proposed removal letter) and the agency's requests

for medical documentation in conjunction with her proposed termination;

(11) concerns LWOP on January 13, 1998, the date that complainant was

notified of her termination. Further, the record shows that complainant

already was on LWOP prior to that date, so the claim is deemed to concern

her termination; and (12). Accordingly, these claims are dismissed

pursuant to 29 C.F.R. � 1614.107(a)(1), for stating the same claim raised

in claim (5) of 01994115.

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).

In claim (9) of 01994113 and claim (3) of 01994115, complainant alleges

that she was forced to retire on January 13, 1998. Although the January

13, 1998 notice of removal gives complainant the option of seeking

disability retirement within one year of her termination, nothing in the

record even implies that complainant sought or received such retirement.

Accordingly, this matter fails to state a claim. Further, to the extent

that complainant raised the issue to challenge her termination, these

claims involve the same claim filed in claim (5) of 01994115.

In claim (16) of 01994113, complainant alleges harm from "reprisal" for

her OWCP filings. Reprisal is a basis for a complaint of discrimination,

but is not linked to any separate factual incident in the claim.

To the extent that complainant alleges she was terminated in reprisal

for her prior EEO activity, this was already noted in the complaint.

Accordingly, claim (16) of 01994113 is the same claim raised in claim

(5) of 01994115 (termination).

(2) Hostile Work Environment, Sexual Harassment, and Working Conditions

Complainant also raises the issue of harassment, sexual harassment, and

working conditions. But complainant provides little or no explanation

of what incidents occurred that she believes caused the harm.

Complainant alleged hostile work environment harassment in claims (3)

and (7) of 01994113 and claim (2) of 01994115. Complainant received a

request for information for each complaint, and yet failed to clarify

how a hostile work environment was created on the dates she alleged

harassment. Therein, complainant only provided dates for the incidents,

without further explanation: July 5, 1997, August 2, 1997, September 15,

1997, September 19, 1997, September 25, 1997, October 1, 1997, October 3,

1997, October 4, 1997, October 8, 1997, October 15, 1997, October 23,

1997, and November 2, 1997. The only hints of what is alleged are

a claimed violation of 5 C.F.R. � 339, reference to the agency's use

of the psychologist's exam to terminate complainant, and a request for

medical documents that later was rebuffed because the agency found that

it already had sufficient medical documentation.

To the extent that complainant is alleging harm from a violation of

5 C.F.R. � 339, the complaint must be dismissed for failure to state

a claim. The regulation cited concerns merit systems rules that are

not enforced by the Commission. The Commission only has authority to

consider individual and class complaints of employment discrimination

and retaliation prohibited by Title VII (discrimination on the bases of

race, color, religion, sex and national origin), the ADEA (discrimination

on the basis of age when the aggrieved individual is at least forty

years of age), the Rehabilitation Act (discrimination on the basis

of disability), or the Equal Pay Act (sex-based wage discrimination).

See 29 C.F.R. � 1614.103(a). Further, to the extent that complainant

claims that she was harassed when she was given the psychological exam,

and when the agency terminated her, she is again alleging harm from her

termination that must be dismissed pursuant to 29 C.F.R. � 29 C.F.R. �

1614.107(a)(1). See supra, pp. 12-13.

With regard to the remaining incidents of harassment, complainant provided

only dates, but no explanation for what occurred. Complainant failed to

clarify the matters, despite a request from the agency in each complaint.

The requests informed complainant that her failure to respond within

fifteen days could result in dismissal, but complainant failed to respond

within the given time. Further, although complainant argues that 99-0057

provides clarifying information, this claim also just provides a list of

dates and claims, without any explanation of what occurred, and was not

filed within fifteen days of the requests. Clearly, the agency does

not have enough information to adjudicate the claims of harassment.

Further, given complainant's repeated failure to clarify her claims,

the agency's dismissal for failure to cooperate was proper. Therefore,

the agency's dismissals of claims (3) and (7) of 01994113 and claim (2)

of 01994115 was proper.

Complainant also alleges harm from sexual harassment. In claim (4) of

01994115, complainant argues that she suffered sexual harassment in her

working conditions, but provides no explanation of what conditions were

affected, or how. Complainant raised sexual harassment in a 95-0369,

and has not been in the work environment since that time. Accordingly,

claim (4) of 01994115 must involve the same matters alleged in the 1995

claim, and was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).

Additionally, complainant received a request for information in this

complaint informing complainant that her failure to respond within fifteen

days could result in dismissal. Complainant has not elaborated on how

she suffered sexual harassment, and has provided no information of live

claims of sexual harassment. Accordingly, dismissal is appropriate

pursuant to 29 C.F.R. � 1614.107(a)(7) as well, for failure to cooperate.

In claim (15) of 01994113, complainant alleged harm from her working

conditions. The agency notes, without contradiction, that complainant

was not working at the time the hostile working conditions allegedly

occurred. The Commission finds that complainant could not have suffered

harm from discriminatory working conditions during a period that she was

not working. Accordingly, claim (15) of 01994113 fails to state a claim.

(3) Reassignment

In claim (8) of 01994113, complainant alleged harm from her reassignment

to a GS-4 position while the harasser from her prior complaints

was allowed to keep his position. The agency defined this matter as

alleging that complainant was harmed when the harassing supervisor was

not reassigned in 1998. The Commission finds that this matter should be

defined as follows: complainant was reassigned to a GS-4 clerk position

upon reinstatement, instead of to her old GS-7 Medical Media Photographer

position.

As noted in complainant's MSPB appeals, complainant eventually received

her old GS-7 position. Nonetheless, complainant was initially reassigned;

clearly, a term or condition of her employment was adversely affected.

Once properly defined, this matter states a claim.

(4) Service Time Credit

Claim (6) of 01994115 also states a claim. Complainant argues that she

was harmed when her time and attendance record was changed to reflect a

different service date. This matter clearly affects a term, condition,

or privilege of employment. Further, the agency dismissed the claim for

failure to discuss the matter with an EEO Counselor, but the Counselor's

Report included a copy of the SF-50 form that changed complainant's

service date. Accordingly, the agency's dismissal of claim (6) of

01994115 was improper.

Complainant again raised her service time credit in claim (13) of

01994113. This matter is the same matter raised in claim (6) of 01994115,

and therefore must be dismissed pursuant to 29 C.F.R. � 1614.107(a)(1),

for stating the same claim raised in a prior complaint.

Leave Without Pay

In claim (14) of 01994113, complainant contends that she had to take leave

for her disability because the agency insisted that complainant work in

the same office with the harassing official from her prior complaints.

The agency misconstrued the claim when it found that complainant suffered

no harm because she had not been at work since 1995. Complainant is

alleging, in essence, that the agency was responsible for her LWOP,

even though it was made at complainant's request, because the agency was

forcing complainant to work with the harassing official. Once properly

defined, the matter states a claim, and the agency's dismissal must

be reversed.

(6) 01994257

Complainant admits that 01994257 provided clarifying information for

01994113, and the Commission finds that its claims are found in 01994113

and/or 01994115. Accordingly, the Commission finds that 01994257 should

be dismissed in its entirety pursuant to 29 C.F.R. � 1614.107(a)(1)

for stating the same claims pending in other complaints.<8>

01996132

Regarding 01996132, the Commission finds that the complaint concerned

the processing of 01994113 and 01994257. As noted above, complaints

concerning the processing of prior complaints must be dismissed pursuant

to 29 C.F.R. � 1614.107(a)(8). Therefore, the agency's dismissal of

01996132 was proper.

01996748

Claims (1) and (2) of 01996748, concerning the agency's failure to

credit complainant with the proper leave, and change of her mailing

address without authorization, state a claim. Complainant argued on

appeal that she did not have access to information on her retirement

(TSP) account, and was not allowed to take leave, although she should

have had a substantial amount of leave accrued. Even though the agency

remedied this situation, complainant clearly was affected prior to the

corrections, and the matters alleged clearly affect a term, condition,

or privilege of employment. The agency's information regarding why the

information was incorrect and how the corrections were retroactively

applied addressed the merits of the claims without a proper investigation

as required by the regulations. Such information is irrelevant to the

procedural issue of whether complainant stated a justiciable claim.

See Osborne v. Department of the Treasury, EEOC Request No. 05960111

(July 19, 1996); Lee v. United States Postal Service, EEOC Request

No. 05930220 (August 12, 1993); Ferrazzoli v. United States Postal

Service, EEOC Request No. 05910642 (August 15, 1991). Accordingly,

the agency's dismissal of claims (1) and (2) was improper.

The agency's dismissal of claim (3), for stating the same claim raised in

prior complaints, is proper. As noted above, complainant alleged harm

from her termination in 01994113, 01994115, and 01994257. Therefore,

the dismissal of claim (3) was proper.

IV CONCLUSION

Accordingly, the agency's dismissals of FAD-2 of 01985589, all of

01994114, claims (1), (2), (3), (4), (5), (6), (7), (9), (10), (11),

(12), (13), (15) and (16) of 01994113, claims (1), (2), (3), (4), and

(7) of 01994115, all of 01994257, all of 01996132, and claim (3) from

01996748 are AFFIRMED for the reasons set forth herein. The agency's

dismissals of claims (8) and (14) of 01994113, claims (5) and (6) of

01994115, and claims (1) and (2) from 01996748, however, are REVERSED,

and these claims are REMANDED for further processing. Additionally,

FAD-1 from 01985589 must be REMANDED for consolidation with the accepted

portion of Agency No. 96-2055.

ORDER

The agency is ORDERED to request consolidation of the remanded claims as

defined herein with all other claims from complainant currently pending

with an EEOC Administrative Judge. Within fifteen (15) calendar days of

the date this decision becomes final, the agency shall issue a request

for consolidation, forwarding the relevant files to the Administrative

Judge, and sending a copy to complainant. The agency also must send a

copy of the request 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:

February 28, 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 Assistant

1On 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 appeals. The regulations, as amended, may also be found at

the Commission's website at WWW.EEOC.GOV.

2The agency failed to supply a copy of a certified mail return receipt or

any other material capable of establishing the date complainant received

any of the agency's dismissals. Accordingly, since the agency failed

to submit evidence of the dates of receipt, the Commission presumes

that the appeals were filed within thirty (30) days of receipt of the

agency's dismissals. See, 64 Fed. Reg. 37,644, 37,659 (1999)(to be

codified and hereinafter cited as 29 C.F.R. � 1614.402).

3The formal complaint was filed on May 1, 1997. On January 14, 1999,

the agency issued an FAD accepting a claim that the agency failed

to accommodate complainant and denied her a light-duty position, but

dismissing others. Complainant appealed the dismissed claims in 01994116,

but the Commission remanded the complaint to an EEOC Administrative

Judge who was preparing to hear the accepted claims.

4Complainant requested that the Commission reconsider its decision in

05980645, which is currently pending.

5The agency included a copy of the investigative report for Agency

No. 95-0369, which involved a litany of claims concerning sexual

harassment, occurring from 1992 through 1995.

6The record includes a Form SF-50, effective April 1, 1995, placing

complainant on leave-without-pay "at employee's request."

7The record does not include any information from Agency No. 98-2884.

8Any "clarifying information" from the claims alleged in 01994257 is

considered a part of the claims they were meant to clarify in 01994113

and/or 01994115.