01A30752_r
02-25-2004
Edmund J. Wiatr, Jr., Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.
Edmund J. Wiatr, Jr. v. Department of Defense
01A30752
February 25, 2004
.
Edmund J. Wiatr, Jr.,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Finance & Accounting Service),
Agency.
Appeal No. 01A30752
Agency Nos. DFAS-IN-RO-02-034; DFAS-IN-RO-02-046
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision, issued on October 28, 2002, dismissing his consolidated
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. and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. � 621 et seq.
Complainant contacted the EEO office claiming he was subjected to
discrimination based on sex, age and in reprisal for prior protected
activity. Informal efforts to resolve complainant's concerns were
unsuccessful. Subsequently, on July 5, 2002, complainant filed a formal
complaint (Case No. DFAS-IN-RO-02-034). The agency framed the claims
as follows:
(1) Complainant received a "Fully Successful" Civil Performance Rating
on May 28, 2002.
(2) Complainant's Performance Ratings for the two years prior to his
most recent (5/28/02) were reduced.
(3) Complainant was denied supervisory control during the Chief of
System's absence on July 3, 2002.
(4) Complainant was denied professional development training.
Thereafter, complainant contacted the EEO office regarding additional
claims of reprisal. When informal efforts to resolve the matter again
failed, complainant filed another complaint on September 18, 2002 (Case
No. DFAS-IN-RO-02-046). The agency framed the claims as follows:<1>
(5) Complainant found out on July 31, 2002, that responsible management
official (RMO-1), in conjunction with RMO-2, RMO-3 and RMO-4 made false,
malicious statements against him in a Federal Labor Relations Authority
proceeding.
(6) Complainant found out from Deputy Director, DFAS-Rome, in a private
phone conversation with Person A, offered him (Person A) a GS-510-13,
Chief of Systems position at DFAS-Rome.
(7) DFAS-Rome officials prepared a false statement on June 24, 2002,
indicating that Person B was being "reassigned" into the Chief of
Systems position.
On September 24, 2002, the agency informed complainant that the two
complaints would be consolidated for investigation and processing.
Thereafter, the agency issued the instant final decision, rescinding
prior acceptance letters and, dismissing the consolidated complaint.
In its final decision, dated October 28, 2002, the agency dismissed
claims (2), (3) and (4) for stating the same claim that is pending
before or has been decided by the agency. The agency determined that
the issues were "essentially the same as issues contained in [cases]
DFAS-IN-N79-99-007, DFAS-IN-RO-00-021, DFAS-IN-RO-99-023 , . . ."
The agency dismissed claims (5), (6) and (7) for failure to state
a claim. The agency noted that complainant did not show that he
suffered a present harm or loss to a term, condition or privilege of
his employment. Further, the agency stated that the Commission does
not have jurisdiction over matter raised in a Federal Labor Relations
Authority proceeding. Finally, the agency dismissed the entire complaint,
including claim (1), for abuse of process. The agency determined that
since January 1997, complainant brought over 40 claims of discrimination.
Stating the Same Claim
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.
The record contains copies of three prior complaints filed in
December 1998 (Case No. DFAS-IN-N79-99-007); May 1999 (Case
No. DFAS-IN-RO-99-023); and November 1999 (Case No. DFAS-RO-00-021).
Based on the time these complaints were filed, the Commission finds that
they could not possibly encompass the alleged events described in claims
(2) and (3).
In claim (2), for example, complainant contends that his performance
ratings for the two years prior to May 28, 2002 were reduced. It is
unclear when precisely the ratings were reduced; however, we find it is
reasonable to conclude it occurred after the latest of the three prior
complaints, which was filed in November 1999. Moreover, the prior
complaints do not include claims regarding the reduction of ratings.
In claim (3), moreover, complainants claims that he was denied
supervisory control on July 3, 2002. The alleged discrimination occurred
years after the filing of the earlier complaints. Therefore, we find
that the agency's decision to dismiss claims (2) and (3), pursuant to
29 C.F.R. � 107(a)(1) was improper.
In claim (4), complainant alleges that he was denied professional
development training. Complainant failed to specify what training he was
denied and when the denial occurred. The prior complaints include several
claims regarding the repeated denial of professional development training,
and complainant has failed to show how the instant case differs from
those claims. Consequently, we find that the agency properly dismissed
claim (4).
Failure to State a Claim
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).
Complainant states in claim (5) that agency officials made false
statements against him in a Federal Labor Relations Authority proceeding.
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). The proper forum for complainant
to have raised his challenges to actions which occurred during the FLRA
proceeding was at that proceeding itself. It is inappropriate to now
attempt to use the EEO process to collaterally attack actions which
occurred during the FLRA process. Moreover, we are not persuaded by
complainant's contentions on appeal that the statements could be used to
deny him promotions, experience and raises. We find that complainant's
concerns are too speculative to state a claim of discrimination.
In claim (6), complainant learned that Person A was offered a Chief
of Systems position at DFAS-Rome. The matter was also dismissed for
failure to state a claim. Complainant argues on appeal that others were
placed in promotional positions that he would have been offered but for
the retaliation. In response, the agency asserts that the incident does
not state a claim because complainant has not identified any positions or
promotions he was denied as a result of the statements. The Commission
agrees with the agency that the described incident fails to state a claim
of discrimination. Complainant has not shown how the incident resulted
in a harm or loss to a term, condition or privilege of his employment.
Complainant also claimed, in claim (7), that officials prepared a false
statement indicating that Person B was being reassigned into the Chief of
Systems position. The Commission has repeatedly found that remarks or
comments unaccompanied by a concrete agency action are not a direct and
personal deprivation sufficient to render an individual aggrieved for
the purposes of Title VII. See Backo v. United States Postal Service,
EEOC Request No. 05960227 (June 10, 1996); Henry v. United States Postal
Service, EEOC Request No. 05940695 (February 9, 1995). The record does
not indicate that the alleged June 24, 2002 statement was accompanied
by any concrete action affecting a term, condition or privilege of
complainant's employment. Therefore, the Commission finds that claim
(7) was properly dismissed.
Abuse of Process
EEOC Regulations provide for dismissal of complaints that are part
of a "clear pattern of misuse of the EEO process for a purpose other
than the prevention and elimination of employment discrimination." 29
C.F.R. 107(a)(9). The criteria required to justify dismissal for abuse
of process, as set forth in Commission decisions, must be applied
strictly. Id. These criteria require:
(i) Evidence of multiple complaint filings; and
(ii) Claims that are similar or identical, lack specificity or involve
matters previously
resolved; or
(iii) Evidence of circumventing other administrative processes,
retaliating against the agency's in-house administrative processes or
overburdening the EEO complaint system.
On rare occasions, the Commission has applied abuse of process standards
to particular complaints. The circumstances where such standards are
applicable must be rare, due to the strong policy in favor of preserving a
complainant's EEO rights whenever possible. See EEO Management Directive
110 (MD-110), 5-17 (November 9, 1999); Love v. Pullman, Inc. 404 U.S. 522
(1972); Wrenn v. Equal Employment Opportunity Commission, EEOC Appeal
No. 01932105 (August 19, 1993).
In the instant case, the agency dismissed the entire complaint for
abuse of process, including claim (1), which was solely dismissed on
these grounds. The agency noted in its final decision that, since
January 1997, complainant brought over 40 claims of discrimination,
many with multiple parts. The agency stated that at least 10 of the
claims involve non-selections, over 20 concerned the denial of training
opportunities, and a claim has been brought for almost every rating
complainant has received since 1996. Further, the agency found that in
the instant claims and prior cases complainant names the same management
officials. The agency stated that instead of amending prior complaints,
to encompass what the agency considers one broad claim of hostile work
environment harassment, complainant continues to bring each new matter
as a separate claim.
The Commission does not find that the amount of cases filed by complainant
to be extraordinary. See Kessinger v. United States Postal Service,
EEOC Appeal No. 01976399 (June 8, 1999) (over 160 complaints and
150 appeal). Moreover, we do not find that the record shows a clear
intent by complainant to utilize the EEO process for ends other than
that which it was designed to accomplish. Consequently, we disagree
with the agency's dismissal for abuse of process.
Accordingly, the agency's decision to dismiss claims (1), (2), and (3)
was improper and is REVERSED. Claims (1), (2), and (3) are REMANDED
to the agency for further processing in accordance with this decision
and the Order below. The agency's decision to dismiss claims (4), (5),
(6), and (7) was proper and is AFFIRMED.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant 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 complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant 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 (K0501)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant 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. �� 1614.407 and 1614.408.
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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision/action 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 within ninety (90) calendar
days from the date that you receive this decision 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. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
February 25, 2004
__________________
Date
1Although the agency identified the claims in Case No. DFAS-IN-RO-02-046
as (1), (2) and (3), the Commission renumbers them (5), (6) and
(7),respectively, for the purpose of clarity.