0120071440
04-25-2007
Carol M. Chostner, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Carol M. Chostner,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120071440
Agency No. 060068101633
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 22, 2006, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. In her
complaint, complainant alleged that she was subjected to discrimination
on the bases of sex (female) and reprisal for prior protected EEO activity
when:
1. The agency failed to continue to provide complainant with paid
administrative leave pending adjudication of her Federal Employees
Compensation Act (FECA) claim as agreed upon in a settlement agreement
on February 4, 2004.
2. The agency applied her sick leave balance to cover her absence;
3. The agency separated her on a disability retirement granted by the
Office of Personnel Management (OPM);
4. The agency failed to correctly and fully restore her annual leave;
5. The agency failed to execute and provide her with the lump sum payment
and awards aspects of the settlement agreement;
6. The agency terminated her health insurance;
7. The agency failed to acknowledge her thirty plus years of service as
done for other retired employees;
8. The agency denied her request for an EEO Counselor outside of the
agency's U.S. Marine Corps; and
9. The agency failed to provide her with information she requested from
the EEO Counselor.
The agency dismissed claims (1) - (5) for raising a claim of breach of
the settlement agreement which the agency already addressed and is on
appeal with the Commission, EEOC Appeal No. 0120064093. The agency then
dismissed claim (6) for failure to state a claim and claim (7) as moot.
Finally, the agency dismissed claims (8) and (9) for claims merely
raising dissatisfaction with the complaint process. The agency noted
that the complaint will be forwarded to the EEO office and an inquiry
will be conducted on these issues. This appeal followed.
As an initial matter, claims (8) and (9) allege dissatisfaction with
the EEO counseling she received on the instant complaint. As the agency
correctly found, this does not state an independent claim, but will be
considered by the Commission when adjudicating the instant complaint in
order to determine whether the alleged improper processing has had a
"material effect" on the complaint. See Equal Employment Opportunity
Commission's Management Directive-110, p. 5-25 to 5-26 (November 9,
1999). In support of her claim of improper counseling, complainant
indicated that she had been the Deputy EEO Officer for the agency's
Marine Corps Base. Complainant asserted that every EEO Counselor had
worked for her personally and is employed by the agency. Complainant
claimed that as a result of the agency's refusal to provide her with an
outside counselor, she was restricted from information and the counselor
was not a neutral individual in the EEO process for her. Upon review,
we concur that in light of the fact that complainant had worked in the
EEO office responsible for providing EEO counseling, the agency should
have provided her with an outside counselor. However, complainant
has not identified how the counseling she received materially effected
the processing of her underlying complaint. Although she asserts she
was denied certain information, she does not identify this information
with sufficient specificity or show how this information was needed to
properly pursue her claims. Therefore, based on the evidence available,
we cannot conclude that the EEO counseling she was provided materially
effected the instant complaint and we will go on to review the agency's
dismissal of the remainder of the claims.
The regulation set forth at 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.
Upon review of the record, we find that claims (1) - (5) allege that the
agency failed to comply with the settlement agreement of February 4, 2004.
We note that complainant has already alleged breach of the settlement
agreement with the agency. The agency issued a final decision determining
that it has complied with the settlement. Complainant appealed that
final decision to the Commission and the appeal shall be address in
EEOC Appeal No. 0120064093. Therefore, we find that the issues raised
in claims (1) - (5) are the same claims pending before the Commission.
As such, we affirm the agency's dismissal of claims (1) - (5).
The regulation set forth at 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 21, 1994). The Commission
has held that an employee cannot use the EEO complaint process to lodge
a collateral attack on another proceeding. See Wills v. Department of
Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. United
States Postal Service, EEOC Request No. 05940585 (September 22, 1994);
Lingad v. United States Postal Service, EEOC Request No. 05930106 (June
25, 1993). Upon review of the record, the proper forum for complainant
to have raised her challenge in claim (6) is with OPM, not the agency.
Accordingly, we affirm the dismissal of claim (6). We also find that
claim (7) should be dismissed for failure to state a claim.
Accordingly, for the reasons stated above, the agency's dismissal of
her complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 25, 2007
__________________
Date
2
0120071440
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120071440