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