01981629
04-01-1999
John J. Beliveau Jr., Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
John J. Beliveau Jr., )
Appellant, )
)
v. ) Appeal No. 01981629
) Agency No. 9866604001
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
Appellant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from a final agency decision (FAD)
concerning his 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., �501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. �791 et seq., and the Age Discrimination in Employment Act of
1967, as amended, 29 U.S.C. �621 et seq. The Commission hereby accepts
the appeal in accordance with EEOC Order No. 960, as amended.
The issue on appeal is whether the agency properly dismissed the
appellant's complaint with respect to each of the allegations set forth
by the appellant.
Based on a review of the record, we find that the agency properly
dismissed appellant's complaint. Appellant alleges that he was
discriminated against on the bases of sex (male), reprisal (prior EEO
activity), age (DOB: 4/8/47), and physical and mental disability (asthma
and stress), when:
a. the agency rejected his application for the Voluntary
Separation Incentive Program;
b. the agency delayed processing a FECA claim;
c. the agency failed to provide a copy of a performance evaluation
for the period ending June 20, 1996;
d. the agency barred access to the work place on July 25, 1997;
e. the agency failed to provide information about job opportunities
while attending the University of Rhode Island; and
f. the agency engaged in sexual harassment during depositions in
conjunction with a case pending before the Department of Labor in
July and September 1997.
In its FAD, and on appeal, the agency asserts that allegations (a) (c),
(d), and (e), are governed by the provisions of a Settlement Agreement
between appellant and the agency. The Settlement Agreement was the
result of a dispute concerning whistle-blowing activities over which the
Department of Labor (DOL) had jurisdiction. The agency indicates that
subsequent complaints and appeals by appellant regarding breach of this
Settlement Agreement, which specifically include the matters set forth
in allegations (a), (c), (d), and (e), have been the subject of a long
and complicated administrative proceeding before an Administrative Law
Judge at the DOL. On appeal, appellant contends that these allegations
are not the same because they have not been considered within the context
of the bases of discrimination he sets forth in his EEO complaint. He
asserts that because he is alleging discrimination under the civil rights
laws administrated by the EEOC, this takes the allegations outside of
the scope of the Settlement Agreement. He further argues that to deny
him the opportunity to present these allegations before the Commission,
in effect denies him of his rights as a federal employee, which cannot
be abridged by a settlement agreement.
It is well settled that 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. 05940585 (September 22, 1994);
Lingad v. United States Postal Service, EEOC Request No. 05930106 (June
24, 1993). By definition, a collateral attack involves a �challenge to
another forum's proceeding, i.e., grievance process, the EEO process in
a separate case, the unemployment compensation process, the workers'
compensation process, the tort claims process, and so forth.� Lau
v. National Credit Union Administration, EEOC Request No. 05950037 (March
18, 1996). The Commission has recognized very narrow exceptions to the
general prohibition on collateral attacks. For example, if an agency
refused to accept grievances from a certain protected class of employees,
or if it refused to provide information necessary to process a claim,
such as a workers' compensation claim, for discriminatory reasons,
then these acts would state a claim under 29 C.F.R.1614.107 (a).
See O'Neal v. U.S. Postal Service, EEOC Request No. 05900620 (August
30, 1990). However, when the acts complained of go to the merits of a
claim under consideration in another forum, then the complaint does not
state an EEO claim. See Schultz v. U.S. Postal Service, EEOC Request
No. 05950173 (September 26, 1996). Moreover, when the matters alleged
in an EEO complaint are �inextricably intertwined� with the issues under
consideration in the proceedings of another forum, such an EEO complaint
constitutes a collateral attack. See Wills v. Department of Defense,
EEOC Request No. 05970596 (July 30, 1998). The Commission has further
held that the appropriate forum for a complainant to raise a claim is the
forum in which the dispute occurred. For example, if the claim concerns
the agency giving an insurance provider false information resulting in
the denial of benefits, then the appropriate forum is with the insurance
provider. As'Salaam v. U.S. Postal Service, EEOC Request No. 01966249
(March 18, 1998).
As noted by the agency on appeal, the Commission has held that when a
matter concerning breach of a settlement agreement is pending before a
federal district court, and when an appellant maintains that the agency's
actions constitute a breach of a settlement agreement, and that these
same actions also constitute new acts of discrimination and retaliation,
to accept these allegations for EEO processing would constitute an
impermissible intrusion into the powers of the District Court because
any appropriate remedies available in the administrative process would
affect the Court's jurisdiction or its rulings. Jones v. U.S. Treasury,
EEOC Request No. 05940888 (June 1995). We find that this reasoning is
consistent with the legal principles cited above, and that it applies
to both administrative as well as judicial forums.
A careful review of the provisions of the Settlement Agreement,
appellant's formal complaints and appeals to the DOL, and the Orders of
the Administrative Law Judge, all consistently confirm that allegations
(a), (c), (d), and (e), are governed by the terms of the Settlement
Agreement, and that they were identified as actions constituting breach
of the Settlement Agreement, and that they were specifically raised as
such in the administrative proceedings at the DOL. That the bases of
discrimination alleged by the appellant in the instant complaint are not
raised in the DOL administrative proceeding does not affect the critical
element of our determination--i.e., whether or not the same matters are
at issue such that the merits of the DOL case are also being alleged in
the EEOC forum. Because we find that the allegations are the same, and
cannot be considered outside the context of the settlement agreement,
they are inextricably intertwined with the matters before the DOL, and
acceptance for EEO complaint processing would constitute an �impermissible
intrusion� or collateral attack on the DOL's processing of the matter
within the meaning of the law cited above. Therefore, we find that the
agency properly dismissed these allegations in its FAD.<0>
The agency dismissed allegation (f) concerning alleged sexual harassment
by the agency's attorney during depositions conducted in conjunction with
the DOL administrative proceeding. On appeal, appellant also contends
that agency attorneys discriminated against him based on his physical
and mental disabilities during both depositions and meetings related to
the proceeding, and that they illegally obtained and used a prior EEO
complaint to question him in an unfair manner.<0> However, as pointed out
by the agency in its FAD, the DOL's administrative proceedings, including
depositions and related meetings, are within the exclusive purview and
jurisdiction of the DOL. Whatever the appellant's remedies may be here,
if any, he must seek them from the DOL. See Wilson v. U.S. Treasury,
EEOC Request No. 05950472 (January 26, 1996). Therefore, the agency's
dismissal of allegation (f) for failure to state a claim pursuant to 29
C.F.R. 1614.107 was appropriate.
The agency dismissed allegation (b), contending that more than 45 days had
expired between the alleged act of discrimination and initial contact
with an EEO counselor on August 4, 1997. However, appellant argues
that he did not become aware of the discrimination until July 25, 1997,
so that his contact was timely.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the EEO counselor
within forty-five (45) days of the date of the matter alleged to be
discriminatory or, in the case of a personnel action, within forty-five
(45) days of the effective date of the action. The Commission has adopted
a "reasonable suspicion" standard (as opposed to a "supportive facts"
standard) to determine when the forty-five (45) day limitation period is
triggered. See Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988).
Thus, the time limitation is not triggered until a complainant reasonably
suspects discrimination, but before all the facts that support a charge
of discrimination have become apparent.
We agree with the agency that the appellant must have �reasonably
suspected� the alleged discrimination concerning the processing of his
workers' compensation (FECA) claim when he filed a request to amend
his DOL appeal, dated March 17, 1997, asking to include the matter set
forth in allegation (b). Without explanation, he then withdrew this
allegation, as noted in the Order of the Administrative Law Judge dated
May 13, 1997. Appellant claims that during the hearing on May 2, 1997,
the agency assured the Administrative Law Judge that the processing
of appellant's FECA claim was on schedule. He contends that he did
not suspect the discrimination alleged until July 25, 1997, when the
agency's attorney used medical documents from his FECA application as
the basis of deposition questions. He does not explain why this led him
to believe that the agency was interfering with the processing of his
FECA claim. Moreover, the appellant does not offer a reason why he did
not bring the matter to an EEO counselor until August 4, 1997, when he
clearly first suspected the alleged discrimination by at least March 17,
1997, and nothing is alleged to have transpired in the course of the next
45 days (May 1, 1997), prior to the May 2, 1997 hearing, to disabuse
him of his original suspicion. Therefore, we find that the agency's
dismissal of allegation (b) on the grounds of untimeliness was proper.
On appeal, the appellant also argues that the agency failed to consider
additional allegations of discrimination which he raised with the EEO
counselor. Specifically, he contends that the FAD did not address his
claim that the agency's failed to accommodate him based on his disability,
and also his claim that the agency forced him to work an excessive number
of hours.
Review of the formal complaint form reveals that appellant references
several attachments from which his allegations are to be gleaned.
One attachment is identified as the �August 4, 1997" letters, which
set forth the allegations as addressed in the FAD. Appellant also
references �Record of Interview�, apparently referring to the EEO
counselor's report. Review of the report shows that appellant complained
of failure to accommodate, not further specified, except to describe
accommodations he was afforded in prior places of employment. Appellant
does not indicate that he requested an accommodation from the agency in
his current employment, nor does he describe what accommodation was denied
by the agency. No dates whatsoever are provided. For these reasons,
we find that the agency appropriately did not construe this statement in
the EEO counselor's report as one of appellant's allegations. The EEO
counselor's report also shows that appellant complained that the agency
required him to work extra hours, apparently in an attempt to over-tire
and over-stress him, so that he would not do well in the depositions. The
appellant characterizes this as �exploiting his disabilities�, and
does not further describe the number of hours, the work involved, or
provide any other information pertinent to this allegation. Essentially,
he identifies the agency's motive as trying to disadvantage him in the
DOL administrative proceeding, which is clearly outside the purview of
bases protected by the civil rights laws and regulations administered
by this Commission. Consequently, we find that the agency was correct
in not construing this as a formal complaint allegation.
Accordingly, we AFFRIM the FAD.
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.
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.F.R.).
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:
April 1, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
01. The FAD also dismissed allegations (a) and (c) as not being
timely raised with an EEO counselor. However, in light of the instant
determination, we find that the issue of whether the dismissal of these
alleges on the grounds of timeliness was appropriate need not be addressed
in this decision.
02. The Commission strongly admonishes the agency's use of appellant's
prior EEO complaint in the DOL administrative proceeding.