Kathleen A. Harcksen, Appellant,v.Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionMay 12, 1999
01983360 (E.E.O.C. May. 12, 1999)

01983360

05-12-1999

Kathleen A. Harcksen, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.


Kathleen A. Harcksen v. Department of Agriculture

01983360

May 12, 1999

Kathleen A. Harcksen, )

Appellant, )

)

)

v. ) Appeal No. 01983360

) Agency No. 980161

)

Daniel R. Glickman, )

Secretary, )

Department of Agriculture, )

Agency. )

______________________________)

DECISION

On March 25, 1998, appellant filed a timely appeal with this Commission

from a final agency decision (FAD) dated February 10, 1998, 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. In her complaint, appellant alleged that she was subjected to

discrimination on the basis of sex (female) when:

On or about September 5, 1997, another employee accused appellant of

sexual harassment due to appellant's manner of dress and breast size;

and

As a result of the agency's informal inquiry into the matter, other

employees became aware of the allegations against appellant.

The agency dismissed both 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 appellant was not aggrieved under

the EEO Regulations because Commission precedent dictates that an employee

may not file a complaint about statements made during the processing of

another EEO complaint. Additionally, the agency noted that allegation (2)

concerned the manner in which appellant's EEO complaint was handled and

that appellant's avenue of redress for that allegation was with the agency

official responsible for the quality of informal complaint processing.

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).

The Commission has previously held that the filing of an EEO complaint

by another individual does not constitute an injury by the agency to a

term, condition or privilege of employment. To allow the processing of

a complaint by an employee, wherein the employee challenges the filing

of an EEO complaint by a co-worker or other agency employee, would have

a chilling effect on the filing of EEO complaints by aggrieved persons.

See Blinco v. Department of the Treasury, EEOC Request No. 05940194

(May 25, 1994). We have also held that such a complaint constitutes a

collateral attack on another EEO matter. Smith v. Department of Veterans

Affairs, EEOC Request No. 059506945 (April 4, 1996). Moreover, there

is no remedial action available to appellant when another individual

files an EEO complaint, as the agency has no authority to restrain an

employee from raising EEO violations through the EEO complaint process.

See Calloway v. Department of the Army, EEOC Appeal No. 01943406 (July

15, 1994); Sherwood v. Department of the Army, EEOC Appeal No. 01941846

(June 3, 1994). The Commission also notes that an agency is legally

obligated to investigate a claim of sexual harassment. See Rogers

v. Department of Defense, EEOC Request No. 05940157 (February 24, 1995).

Accordingly, we find that the agency properly dismissed allegation (1)

pursuant to 29 U.S.C. �1614.107(a).

Furthermore, we find that dismissal of allegation (2) was proper.

While the agency states that appellant was challenging the processing

of her complaint, upon review, we find that appellant appears to be

challenging the processing of the other employee's sexual harassment

complaint. Consequently, we find that dismissal was proper for the same

reasons as stated above with regard to allegation (1).

Accordingly, the agency's decision to dismiss both allegations in

appellant's complaint 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:

May 12, 1999

____________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations