Sandra L. Short, Appellant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionOct 7, 1999
01980456 (E.E.O.C. Oct. 7, 1999)

01980456

10-07-1999

Sandra L. Short, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.


Sandra L. Short, )

Appellant, )

)

v. ) Appeal No. 01980456

) Agency No. 5Z1S97006

F. Whitten Peters, )

Acting Secretary, )

Department of the Air Force, )

Agency. )

)

DECISION

On October 16, 1997, appellant filed an appeal with this Commission from

an August 28, 1997 final agency decision (FAD)concerning her complaint

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.,

and the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq.<1>

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed appellant's

complaint.

BACKGROUND

On July 1, 1997, appellant timely filed a formal complaint regarding

allegations of discrimination. On August 28, 1997, the agency issued

a final decision (FAD) dismissing appellant's complaint for failure to

state a claim and for challenging a proposal to take a personnel action

is discriminatory. The FAD identified appellant's bases of discrimination

as follows: sex (female), race (Asian) and disability (chronic fatigue

syndrome). The FAD also defined appellant's complaint as containing the

following issues: (1) on August 21, 1996, two agency officials gave false

witness statements in connection with the investigation into appellant's

prior EEO complaint, Agency No. 5Z1S96004; (2) on November 21, 1995,

agency officials violated appellant's right to privacy with respect to

transmitting and reviewing her medical records without authorization;

(3) on December 19, 1995, the agency proposed appellant's separation

from service because of her disability; (4) on November 27, 1995, the

agency proposed appellant's termination and (5) on or about December 18,

1995, the agency failed to correct the fact that appellant had not been

placed on Family Medical Leave pending the processing of her request

for disability retirement.

The agency determined that, in allegation (1), appellant expressed

dissatisfaction with the processing of her prior EEO complaint.

The FAD concluded that appellant lacked standing as an aggrieved

individual and that her allegation failed to state a claim pursuant

to 29 C.F.R. �1614.103(a). The FAD determined that allegations (2),

(3), (4) and (5) concerned the agency's proposal to remove appellant

from employment because of her disability. The FAD indicates that

the agency's proposal was not acted upon and that appellant received

her disability retirement in March 1996. Therefore, the agency found

appellant's complaint allegations to be moot.

ANALYSIS AND FINDINGS

Upon review, the Commission determines that the agency's decision

dismissing allegations (1), (3), (4) and (5) of appellant's complaint was

proper. Specifically, we find that allegation (1), that agency officials

provided false statements during the investigation of appellant's

complaint, challenges the agency's processing of the complaint, and is

an impermissible collateral attack on the prior complaint investigation.

The Commission has held that an allegation which relates to the processing

of a previously filed complaint does not state an independent allegation

of employment discrimination. See Kleinman v. United States Postal

Service, EEOC Request No. 05940579 (September 22, 1994). The proper

method for addressing appellant's allegations would be within the

processing of the previously filed complaint or, an appeal from the

final agency decision issued therein. Any remedial relief to which

appellant would be entitled would necessarily involve the processing

of the underlying complaint. We find, therefore, that the agency's

dismissal of allegation (1) for failure to state a claim was proper.

Concerning appellant's remaining complaint allegations, we find that the

agency defined allegations (2), (3), (4) and (5) as part of a broader

allegation of discrimination concerning the agency's proposal to remove

appellant from employment because of her disability. The record indicates

that the agency's letter of proposed dismissal was rescinded on March

27, 1996 following confirmation that appellant's request for disability

retirement had been approved by the Office of Personnel Management in

March 1996.

The instant record also indicates that appellant's proposed dismissal and

her subsequent disability retirement were previously before the agency

pursuant to agency case No. 5Z1S96003. Therein, appellant alleged that

the agency's actions in (a) denying her Family Medical Leave; (b) denying

her request that she be permitted to receive donated leave through the

Voluntary Leave Transfer Program; (c) placing her in leave-without-pay

status which resulted in her temporarily losing her health insurance

benefits; and (d) proposing her separation for disability, forced

appellant to accept disability retirement. The agency issued a final

decision dismissing the prior complaint for untimely EEO contact.

The record indicates further that appellant appealed the agency's decision

which was affirmed by the Commission in Short v. Department of the Air

Force, EEOC Appeal No. 01972741. (December 18, 1997).<2>

EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall

dismiss a complaint or a portion of a complaint that states the same claim

that is pending before or has been decided by the agency or Commission.

Here, the issue of appellant's disability retirement is again before the

Commission pursuant to the instant appeal. We determine therefore, that

allegations (3), (4) and (5) are part of appellant's broader allegation

of constructive discharge which has previously been decided by the

agency and the Commission. See footnote 2, supra. We find further that

the agency should properly have dismissed allegations (3) through (5)

pursuant to 29 C.F.R. �1614.107(a) for stating the same claim which has

been decided by the agency.

We do not, however, apply the same analysis to the agency's dismissal of

allegation (2). Therein, appellant alleged that the agency improperly

transmitted and reviewed her medical records without authorization.

The Commission held in Valle v. United States Postal Service, EEOC

Request No. 05960585 (September 5, 1997):

The Rehabilitation Act was amended to provide that the standards used

to determine whether non-affirmative action employment discrimination

has occurred shall be the standards applied under Title I of the ADA.

See �503(b) of the Rehabilitation Act Amendments of 1992, P.L. 102-569,

106 STAT. 4344 (October 29, 1992; 29 U.S.C. 791 (g)). Polifko v. Office

of Personnel Management, EEOC Request No. 05940611 (January 4, 1995).

The regulation implementing the ADA address the issue of confidential

medical records:

Information obtained. . . regarding the medical condition or history

of any employee shall. . . be treated as a confidential medical record,

except that:

(I) supervisors and managers may be informed regarding necessary

restriction on the work or duties of the employee and necessary

accommodation. . . See 29 C.F.R. �1630.14(c).

If the agency disclosed medical information pertaining to appellant

in a manner that did not conform to the conditions prescribed in

this regulation, then its act of dissemination would constitute a

per se violation of the Rehabilitation Act, and no showing of harm

beyond the violation would be necessary for appellant to state a claim.

See Valle, supra. In that regard, we find that allegation (2) regarding

the agency's transmittal of her medical records states a claim of

employment discrimination. Allegation (2) is REMANDED to the agency

for processing.<3>

CONCLUSION

Based on a through review of the record and for the reasons stated

herein, the agency's decision dismissing allegations (1), (3), (4) and

(5) is hereby AFFIRMED. The agency's decision dismissing allegation

(2) is REVERSED. The allegation is REMANDED to the agency in accordance

with the Order below.

ORDER (E1092)

The agency is ORDERED to process the remanded allegations in accordance

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

that it has received the remanded allegations within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue to

appellant a copy of the investigative file and also shall notify appellant

of the appropriate rights within one hundred fifty (150) calendar days

of the date this decision becomes final, unless the matter is otherwise

resolved prior to that time. If the appellant requests a final decision

without a hearing, the agency shall issue a final decision within sixty

(60) days of receipt of appellant's request.

A copy of the agency's letter of acknowledgment to appellant and a copy

of the notice that transmits the investigative file and notice of rights

must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action.

The report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503(a). The appellant also has the right

to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. ��1614.408, 1614.409, and 1614.503(g). Alternatively,

the appellant has the right to file a civil action on the underlying

complaint in accordance with the paragraph below entitled "Right to File

A Civil Action." 29 C.F.R. ��1614.408 and 1614.409. A civil action for

enforcement or a civil action on the underlying complaint is subject to

the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and be submitted to the Director, Office of

Federal Operations, Equal Employment Opportunity Commission, P.O. Box

19848, Washington, D.C. 20036. In the absence of a legible postmark,

the request to reconsider shall be deemed filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and any supporting documentation must be submitted with your

request for reconsideration. The Commission will consider requests

for reconsideration filed after the deadline only in very limited

circumstances. See 29 C.F.R. �1614.604(c).

RIGHT TO FILE A CIVIL ACTION (T0993)

This decision affirms the agency's final decision in part, but it also

requires the agency to continue its administrative processing of a

portion of your complaint. You have the right to file a civil action

in an appropriate United States District Court on both that portion of

your complaint which the Commission has affirmed AND that portion of the

complaint which has been remanded for continued administrative processing.

It is the position of the Commission that you have the right to file

a civil action in an appropriate United States District Court WITHIN

NINETY (90) CALENDAR DAYS from the date that you receive this decision.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. If you file a civil action, YOU MUST NAME AS THE DEFENDANT

IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT

HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND OFFICIAL TITLE.

Failure to do so may result in the dismissal of your case in court.

"Agency" or "department" means the national organization, and not the

local office, facility or department in which you work. If you file

a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1092)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

October 7, 1999

____________________________

DATE Carlton M. Hadden, Acting Director

1In the absence of clear evidence as to when appellant received

the FAD, the Commission accepts her appeal as timely.

2See Short v. Department of the Air Force, EEOC Appeal No. 01972741

(December 18, 1997), request for reconsideration granted, EEOC Request

No. 05980343.

3We suggest that the remanded allegation be consolidated with agency

case number 5Z1S96003.