01986839
03-15-1999
Gordon Bentley, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Gordon Bentley v. Department of the Navy
01986839
March 15, 1999
Gordon Bentley, )
Appellant, )
)
)
v. ) Appeal No. 01986839
) Agency No. DON 98-00024-006
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision ("FAD") concerning his complaint of unlawful employment
discrimination in violation of Title VII, 42 U.S.C. 2000e et seq. The
final agency decision was dated August 24, 1998. The appeal was
postmarked September 17, 1998. Accordingly, the appeal is timely (see,
29 C.F.R. �1614.402(a)), and is accepted in accordance with EEOC Order
No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed all four
allegations of the complaint for failure to state a claim.
BACKGROUND
The record indicates that on March 2, 1998, appellant initiated contact
with an EEO Counselor regarding his complaint. Informal efforts to
resolve his concerns were unsuccessful. On May 20, 1998, appellant
filed a formal complaint, alleging that he was the victim of unlawful
employment discrimination on the basis of his race(white), physical
handicap, and reprisal when:
His supervisor questioned him on January 6, 1998 about his testimony
in an EEO case and about his retirement plans;
His supervisor denied his request for vacant office space on January 16,
1998 which was later given to a lower grade employee ;
On February 2, 1998 an agency attorney violated his right to privacy
by gaining accessing to his EEO records;
An administrative judge of the EEOC admitted into evidence his EEO
records;
On August 24, 1998, the agency issued a final decision dismissing all four
allegations of the appellant's complaint for failure to state a claim.
Specifically, the agency found that the appellant's supervisor's questions
regarding his EEO testimony and his retirement plans did not concern
a term or condition of employment. As such, the agency concluded,
the complaint failed to state a claim of discrimination.
The agency concluded that the appellant's supervisor's denial of his
request for certain vacant office space also did not concern a term or
condition of his employment and therefore, he failed to state a claim.
The agency decided that the appellant's claim that his right to privacy
was violated when his EEO records were obtained by an agency attorney
was not actionable under Title VII. Likewise, the agency determined that
an administrative judge's decision to admit those records into evidence
at another employee's hearing failed to state a claim because the agency
did not employ the administrative judge.
The appellant challenges the agency's dismissal of his complaint in this
appeal.
ANALYSIS AND FINDINGS
EEOC Regulations make it unlawful to subject an employee to retaliation
for opposing any practice made unlawful by title VII of the Civil
Rights Act.( 29 C.F.R.� 1614.101 ). To state a claim of reprisal, one
must allege involvement in the EEO process or the prior filing of an
EEO complaint 2) that the employer knew or should have known of the
employee's EEO involvement and 3) subsequent to the EEO involvement,
the employee suffered an adverse employment action.
We disagree with the agency 's dismissal of the allegation that the
appellant's supervisor questioning him about his testimony in another
employee's EEO case failed to state a claim in light of his second
allegation that just days later, his request for vacant office space
was denied in favor of a lower grade employee. Although the appellant
listed these allegations separately, the record indicates they are closely
related in time and involved the same supervisor. We view them together as
potentially having a nexus and stating a claim for reprisal. It is well
established that EEO charges are to be liberally construed to effectuate
the purposes of the discrimination statutes and the crucial role of the
private litigant in the statutory scheme. Sanchez v. Standard Brand,
Inc., 431 F.2d 455 (5th Cir. 1970); President v. Vance, 627 F.2d 353
(D.C. Cir.).
The Commission has the authority to "reframe charges and use available
materials and information to articulate lay complainant's charges."
Blue Bell Boots, Inc. v. EEOC, 418 F.2d 355, 357 (6th Cir 1969).
Rajpal v. United States Postal Service, EEOC Request No. 05920037
(May 19, 1992). Garrett v. United States Postal Service, EEOC Appeal
No. 01963466 (November 29, 1996).
Having said this, it is our view that the appellant's second allegation
regarding the denial of office space is enough to state a claim in and of
itself as it concerns a term and condition of employment. Consequently,
we find that the agency erred in dismissing these two allegations of
the complaint.
We agree with the agency's dismissal of the appellant's claim that
his right to privacy was violated when an agency attorney obtained
his EEO records and introduced them in another employee's EEO hearing.
The appellant's claim regarding violations of the Privacy Act do not state
a claim under Title VII which concerns only the rights of employees
to be free from discrimination in the workplace. See William Osborn
v. U.S.P.S. EEOC Request No. 05950654 February 15, 1996.
We also agree with the agency that the fourth allegation concerning the
actions of an EEOC administrative judge in admitting the appellant's EEO
records (or parts thereof) into evidence in another employee's hearing
fails to state a claim under Title VII. Under Title VII, the appellant
may only raise a claim concerning the actions of his own employer vis
a vis the terms conditions or privileges of his employment. See 42
U.S.C. 2000e-2. Furthermore, an employee may not use the EEO complaint
process to lodge a collateral attack on another proceeding. Kleinman
v. United States Postal Service, EEOC Request No. 05930106 (June 24,
1993).
Wilson v. Department of the Treasury, EEOC Request No. 05950472 (January
26, 1996) (challenge to agency's litigation tactics at EEO hearing fails
to state a claim in subsequent EEO case).
CONCLUSION
Accordingly, we REVERSE and REMAND the agency's dismissal of allegations
one and two of the complaint and AFFIRM the agency's dismissal of
allegations three and four. The agency is ordered to process the remanded
allegations as indicated below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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 (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. 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 15, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations