Santhamma Kurian, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionFeb 3, 2000
01995903 (E.E.O.C. Feb. 3, 2000)

01995903

02-03-2000

Santhamma Kurian, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Santhamma Kurian, )

Complainant, )

)

v. ) Appeal No. 01995903

) Agency No. 99-3319

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

____________________________________)

DECISION

On July 22, 1999, complainant filed a timely appeal with this Commission

from a final agency decision (FAD) received by her on July 2, 1999,

pertaining to 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.<1> In her complaint, complainant alleged that she

was subjected to discrimination in reprisal for prior EEO activity when

she received a copy of the Medial Center Director's formal complaint of

discrimination, naming complainant as the responsible agency official.

The agency dismissed the complaint for failure to state a claim.

Specifically, the agency found that complainant was not aggrieved by

the Director's action.

The record includes a copy of the Director's complaint, dated March 29,

1999. In this complaint, the Director claims that he has been harassed

by complainant filing complaints against him. The record also includes

a letter from complainant's attorney, dated April 4, 1999, stating that

the Director's complaint was the reason behind complainant's complaint.

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).

Complainant is not aggrieved by being named as the responsible agency

official in the Director's complaint.<2> The Commission has previously

held that the filing of an EEO complaint by another individual does not

constitute an injury by the agency to a term, condition or privilege

of employment. To allow the processing of a complaint by an employee,

wherein the employee challenges the filing of an EEO complaint by a

co-worker or other agency employee, would have a chilling effect on the

filing of EEO complaints by aggrieved persons. See Blinco v. Department

of the Treasury, EEOC Request No. 05940194 (May 26, 1994)(manager's

complaint filed against a complainant does not render the complainant

aggrieved). We have also held that such a complaint constitutes

a collateral attack on another EEO matter. Smith v. Department of

Veterans Affairs, EEOC Appeal No. 01951545 (May 17, 1995), req. to

recons. den. EEOC Request No. 05950694 (April 4, 1996). Moreover, there

is no remedial action available to complainant when another individual

files an EEO complaint, as the agency has no authority to restrain an

employee from raising EEO violations through the EEO complaint process.

See Carroll v. Department of the Army, EEOC Appeal No. 01975910 (May 22,

1998), req. to recons. den. EEOC Request No. 05980825 (January 22, 1999);

Calloway v. Department of the Army, EEOC Appeal No. 01943406 (July 15,

1994). The Commission also notes that an agency is legally obligated to

investigate a claim of harassment. See Rogers v. Department of Defense,

EEOC Request No. 05940157 (February 24, 1995).

CONCLUSION

Accordingly, the agency's dismissal is AFFIRMED.

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 (S1199)

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. 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 3, 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 appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.

2Although not currently before the Commission, we note that the Director's

complaint, which concerns complainant's prior filings against him,

is equally inadequate.