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.