01981592
03-30-1999
Estela B. Aguilar, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Estela B. Aguilar v. Department of the Treasury
01981592
March 30, 1999
Estela B. Aguilar, )
Appellant, )
)
v. ) Appeal No. 01981592
) Agency No. 97-2002
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
Agency. )
______________________________)
DECISION
The record discloses that on October 2, 1996, appellant filed a formal
complaint referencing the five incidents of alleged discrimination
identified below. On November 2, 1996, the agency issued a notice
accepting allegation (1) for processing. At the conclusion of the
investigation, appellant requested a hearing before an EEOC Administrative
Judge (AJ). Prior to a hearing being held, on August 13, 1997, the AJ
remanded the complaint to the agency for investigation of appellant's
remaining allegations.
On December 10, 1997, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by her on November 14,
1997, 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., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq.
The record reflects that appellant was prosecuted for alleged criminal
activities associated with her employment and eventually found not guilty.
Appellant instigated the instant complaint at the conclusion of her trial.
In her complaint, appellant alleged that she was subjected to sexual
harassment and discrimination on the bases of age (49), national origin
(Mexican-American), religion (Jewish), sex (female), and in reprisal
for prior EEO activity when:
On May 2 or 3, 1997, a Special Agent in the Office of Investigations
(SA1) made statements to other employees concerning the disclosure at
appellant's trial of her alleged sexual relationship with her supervisor
(S1);
On July 20, 1996, an anonymous source informed appellant that another
Special Agent in the office of investigations (SA2) stated that appellant
and S1 had a sexual relationship;
In an interview by two agents with the agency's Office of Internal
Affairs, during the investigation of appellant's alleged wrongdoing,
S1 was asked whether he had a sexual relationship with appellant,
and confidential information from that interview was inappropriately
disclosed to one agent's girlfriend, who, subsequently, repeated the
information to other employees;
On July 22, 1997, when reviewing the documents utilized at her criminal
trial, appellant learned that a co-worker (CW1) informed the Office
of Internal Affairs that appellant interfered with the inspection of
a boat in May 1995; and
On December 21, 1996, during appellant's arrest by the Office of
Internal Affairs, the Resident Agent in Charge (RAC) told appellant,
"Get your ass over here so we can process you."
The agency dismissed all five of the allegations in appellant's complaint
pursuant to EEOC Regulation 29 U.S.C. �1614.107(a), for failure to state
a claim. Specifically, the agency determined that because allegations
(1) and (2) concerned remarks or comments that were unaccompanied by
a concrete agency action, appellant was not aggrieved. The agency
further concluded that appellant failed to show how she suffered harm
to the terms, conditions, or privileges of her employment as a result
of allegation (3), or, alternatively, that alleged violations of the
Privacy Act are beyond the scope of the EEOC regulations. The agency
found that allegations (4) and (5) concerned collateral attacks of the
criminal investigation and arrest, and therefore, do not state cognizable
claims under 29 U.S.C. �1614.
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, 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;
�1614.106(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).
We find that allegations (1) through (5) represent matters that are beyond
the scope of the EEO process as they are closely intertwined with the
criminal investigation of appellant's alleged wrongdoing. Any remedial
relief to which appellant would be entitled would necessarily infringe
upon the investigative process and cause an unwanted chilling effect on
future investigations. The proper forum for appellant to have raised
her challenges to actions which occurred during the agency's internal
investigative process was in that process itself. See generally
Kleinman v. USPS, EEOC Request No. 05940585 (September 22, 1994);
Lingad v. USPS, EEOC Request No. 05930106 (June 24, 1993).
Accordingly, the agency's final decision dismissing allegations (1)
through (5) is AFFIRMED for the reasons set forth herein.
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 (S0993)
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. 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:
March 30, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations