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.