01995427_r
05-18-2001
Greg Agopian, Complainant, v. Robert B. Pirie, Jr., Acting Secretary, Department of the Navy, Agency.
Greg Agopian v. Department of the Navy
01995427
May 18, 2001
.
Greg Agopian,
Complainant,
v.
Robert B. Pirie, Jr.,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01995427
Agency No. DON-99-63126-012
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed by the agency pursuant to 29 C.F.R. � 1614.107(a)(1).
In his complaint dated April 9, 1999, complainant claimed that he was
discriminated against on the bases of race (Armenian), national origin
(Armenian), disability (hypervigilance, chronic stress, chronic fatigue
and perceived disabilities) and reprisal for prior EEO activity when:
(A) On December 9, 1998, complainant discovered that agency officials
were allowed access to his medical evaluation in violation of the Privacy
Act, and, another individual of the same national origin as complainant
(Armenian) was appointed as the recommending official for complainant's
performance reconsideration request;
Complainant was denied use of government equipment. Specifically, on
December 9, 1998, he was denied the use of a computer and the Defense
Network System, and, on December 18, 1998, he was denied the use of a
photocopy machine;
On December 9, 1998, complainant learned that his third level supervisor
changed his rating for the performance period ending July 31, 1998 to a
Level 2 even though his first and second level supervisors recommended
that he receive a Level 1 rating;
In December 1998 complainant was denied access to the base to attend a
retirement seminar and to retrieve personal belongings; denied official
time to prepare his EEO complaint, his Office of Workers' Compensation
claim and DONCAF issues;
denied training opportunities; his meetings were tracked; and, he was
denied access to his personnel security files;
In December 1998 complainant discovered that the agency provided false
information to the State of California Employment Development Department
(�CEDD�) and the Office of Workers' Compensation Program (�OWCP�)
regarding his claims;
On January 27, 1999, the Command Judge Advocate for the Naval Air Weapons
Station, Point Mugu, and another individual provided false information in
an interrogatory submitted to the Merit Systems Protection Board (�MSPB�);
In January 1999 the Labor Relations Specialist included complainant's
medical report in a faxed response to the MSPB; and
In January 1999 the Labor Relations Specialist and another individual
advised complainant that his request for annual leave, sick leave,
and/or leave-without-pay was denied because it would nullify his
indefinite suspension.
The Commission finds that the agency properly dismissed all of
complainant's claims for failure to state a claim, pursuant to 29
C.F.R. � 1614.107(a)(1).
The first part of claim A, complainant's claim that agency officials were
allowed access to his medical evaluation in violation of the Privacy Act,
as well as claim G, which states that the medical records were sent to
the MSPB, fail to state a claim because jurisdiction for claims arising
under the Privacy Act rests exclusively in the U.S. District Courts.
The second part of claim A, the claim regarding the appointment of a
recommending official of the same national origin as complainant, fails
to state a claim because the appointment of that individual, by itself,
did not render complainant aggrieved.
Claims B, D, and H are dismissed because effective October 29, 1998,
complainant was barred from the Naval Air Weapons Station, Point Mugu, and
all of its facilities and activities, and, complainant was indefinitely
suspended beginning on December 6, 1998. Therefore, complainant cannot
identify how any of these incidents adversely affected a term, condition,
or privilege of his employment.
Regarding the change in complainant's performance level rating to
a Level 2, claim C, the agency asserts that complainant stated the
same claim that is pending before or has been decided by the agency
or Commission under Agency No. DON-98-63126-027. The complaint (or
other documents indicating the definition of the complaint) filed in
DON-98-63126-027 does not appear in the record. Therefore, we can not
find that claim C was properly dismissed for stating the same claim as
raised in DON-98-63126-027. The Commission finds, based on the record,
that claim C was improperly dismissed.
In claim E complainant claims that the agency provided false information
to the CEDD and OWCP on his claims. In claim F complainant claims that
the agency provided false information about complainant to the MSPB.
An employee cannot use the EEO complaint process to lodge a collateral
attack on another forum's proceeding. See Kleinman v. U.S. Postal
Service, EEOC Request No. 05940585 (September 22, 1994); Lingad
v. U.S. Postal Service, EEOC Request No. 05930106 (June 24, 1993).
Since the claims against CEDD, OWCP, and the MSPB, are collateral attacks
on the outcome of other administrative dispute resolution processes,
they fail to state a claim.
Additionally, complainant fails to state a claim of harassment because
the incidents described in complainant's complaint were not sufficiently
severe or pervasive to alter the conditions of complainant's employment.
The agency's final decision dismissing claims A, B, and D - H is AFFIRMED.
The agency's decision dismissing claim C is REVERSED and we REMAND claim
C to the agency for further processing in according with this decision
and applicable regulations.
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 (K0900)
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)(Supp. V 1993). 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 (M0900)
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
May 18, 2001
__________________
Date