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.