01A55819
08-09-2006
Khosrow Delalat, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Khosrow Delalat,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A55819
Agency No. 05-00242-00732
DECISION
JURISDICTION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 24, 2005, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights Act
of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section 501 of
the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C.
� 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
According to the record, complainant was employed with the agency from 1986
through 1998. Complainant indicated that he filed a claim with the Office
of Worker's Compensation Program (OWCP), which was accepted in 1995. On
March 2, 2005 complainant initiated contact with an EEO Counselor, and,
subsequently filed a formal EEO complaint on April 11, 2005, alleging that
he was subjected to discrimination on the bases of race (Black/Alaskan),
national origin (Iran), religion (Muslim), disability (unspecified
physical/mental), age (D.O.B. 11/23/38), and reprisal for prior protected
EEO activity under Title VII of the Civil Rights Act of 1964 when he was
subjected to a hostile work environment by the Director of the Navy's
OWCP.[1] In pertinent part, the complainant's claim alleges that the OWCP
Director:
1) failed to process his claims for benefits by ignoring his
requests for information, a scheduled award, and for "buy-back"
of his annual and sick leave;
2) failed to answer over 300 pieces of correspondence regarding his
OWCP claims; and
3) blocked his efforts to file complaints with the EEO Office, the
Merit Systems Protection Board, the Office of Special Counsel,
and the Navy Inspector General regarding his issues with the
processing of his OWCP claims.
Summarily, complainant alleged that the Director acted improperly or failed
to act in reference to his OWCP claim.
In response, in a decision dated May 24, 2005, the agency explained that
the complainant's claims were concerned with Workers Compensation.
Further, the agency explained that a complaint concerning a workers'
compensation claim before the OWCP does not state a claim within the
Commission's jurisdiction, except in very limited circumstances. As such,
the agency issued a final decision, dismissing the complaint of
discrimination for failure to state a claim.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint 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, .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).
However, the Commission has held that where a complainant does not
challenge an agency action or inaction regarding a specific term, condition
or privilege of employment, the claim may survive as evidence of harassment
if it is sufficiently severe or pervasive to alter the conditions of the
complainant's employment. See Harris v. Forklift Systems, Inc., 510 U.S.
17, 23 (1993). It is well settled that, whether harassment is sufficiently
severe to trigger a violation of EEO statutes must be determined by looking
at all of the circumstances, including the frequency of the discriminatory
conduct, its severity, whether it is physically threatening or humiliating,
or a mere offensive utterance, and whether it unreasonably interferes with
an employee's work performance. See id.; Enforcement Guidance on Harris v.
Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
Upon review, the Commission finds that the agency properly dismissed the
complainant's complaint for failure to state a claim. The Commission has
held that a complainant may not use the EEO process to launch a collateral
attack on the workers' compensation process. Story v. U.S. Postal Service,
EEOC Request No. 05960314 (October 18, 1996).
Regarding the instant claim, although complainant characterizes his
allegation as one of "discrimination," the gist of his allegation is that
in the due course of processing his worker's compensation claim, the agency
has not responded to his inquiries going to the merits of that claim.
Further, the Commission concludes that the incidents cited by complainant,
either viewed independently or together are not sufficiently severe or
pervasive to state a claim of harassment. Therefore, the agency decision
properly dismissed complainant's claim on the ground of failure to state a
claim.
Regarding the claim of reprisal, the Commission has a policy of considering
reprisal claims with a broad view of coverage. See Carroll v. Department
of the Army, EEOC Request No. 05970939 (April 4, 2000). Under Commission
policy, claimed retaliatory actions which can be challenged are not
restricted to those which affect a term or condition of employment.
Rather, a complainant is protected from any discrimination that is
reasonably likely to deter protected activity. See EEOC Compliance Manual
Section 8, "Retaliation," No. 915.003 (May 20, 1998), at 8-15; see also
Carroll, supra. We find that complainant has failed to identify incidents
that are reasonably likely to deter EEO activity.
CONCLUSION
Accordingly, the agency's final decision dismissing the instant complaint
for failure to state a claim is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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. 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
August 9, 2006
__________________
Date
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[1] We note that there were a total of 395 claims alleged by complainant in
the formal complaint.