01981164
11-24-1998
Paula Fisk, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Paula Fisk v. Department of the Navy
01981164
November 24, 1998
Paula Fisk, )
Appellant, )
) Appeal No. 01981164
v. ) Agency Nos. 97-60259-005
) 97-60259-006
Richard J. Danzig, ) 97-60259-007
Secretary, ) 97-60259-008
Department of the Navy, ) 97-60259-009
Agency. )
______________________________)
DECISION
On November 18, 1997, appellant filed a timely appeal with this Commission
from a final agency decision ("FAD") received by her on October 23,
1997, pertaining to her complaints 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 ("ADEA"), as amended, 29 U.S.C. �621 et seq. The agency
consolidated appellant's complaints pursuant to 29 C.F.R. �1614.606.
In her complaints, appellant alleged that she was subjected to
discrimination on the bases of sex (female), age (DOB 2/17/46), mental
disability (depression), physical disability (angina, migraine headaches,
eating disorder, TMJ, herniated cervical discs, neck, back, and chest
pains), and in reprisal for prior EEO activity when:
On March 24, 1997, the former Commanding Officer ("CO") at appellant's
work location provided information to the Defense Finance and Accounting
Service which alleged that appellant owed $5358.35 for the pay period
ending December 20, 1996;
The CO did not assist appellant with regard to complaints she raised
concerning an Employee Relations Specialist who allegedly made false
statements to the Department of Labor, a United States Senator, and the
agency's Human Resources Office, resulting in the denial of appellant's
workers' compensation benefits;
On March 17, 1997, an agency attorney violated appellant's right to
privacy by sending appellant's charges concerning the improper processing
of her prior EEO complaints to the individuals who were the subject of
appellant's charges;
On unspecified dates, the CO harassed and retaliated against appellant by
not providing immediate remedial intervention to stop the retaliation
directed toward appellant by CO's subordinate chain of command,
specifically, the subordinates provided false information regarding
appellant's Workers' Compensation claim;
From January 1993, to December 20, 1996, the CO failed to make available
to appellant written materials concerning the variety of EEO programs
and remedial procedures, i.e., the agency failed to properly distribute
materials regarding the use of the EEO process;
On an unspecified date, an agency official retaliated against appellant
by failing to maintain a continuing affirmative employment program to
identify and eliminate discriminatory practices and policies within the
agency;
On an unspecified date, another supervisor ("S2") refused to intervene on
appellant's behalf and retaliated against appellant for making allegations
concerning S2's colleagues;
On January 28, 1997, the agency sent a copy of its notice of receipt of
her discrimination complaint to her former attorney; and
On unspecified dates, the agency did not provide appellant proper
counseling on the EEO allegations she presented to an EEO Counselor from
March through May 19, 1997.
On October 21, 1997, the agency issued a final decision accepting
allegation (a) for investigation. The FAD dismissed allegations (b)
through (f), pursuant to EEOC Regulation 29 C.F.R. �1614.107(a),
for failure to state a claim; allegation (g), pursuant to 29
C.F.R. �1614.107(a), for raising the same claim that was pending before or
decided by the agency or Commission; and allegations (h) and (i), pursuant
to 29 C.F.R. �1614.107(e), on the grounds that they were rendered moot.
Further, the agency dismissed the basis of reprisal for whistleblowing.
The Commission notes that appellant's employment with the agency concluded
on December 20, 1996.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which 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).
In the instant case, we find that appellant failed to show that she
suffered harm with respect to the terms, conditions, or privileges of
her employment as a result of the incidents of alleged discrimination
identified in allegations (b) through (i). Allegations (c), (e), and
(i) concern alleged improprieties by the agency in the processing of
appellant's EEO complaints. The Commission has held that allegations
which relate to the processing of previously filed complaints do not state
independent allegations of employment discrimination. See Kleinman v.
U.S. Postal Service, EEOC Appeal No. 05940579 (September 22, 1994);
Story v. U.S. Postal Service, EEOC Appeal No. 01965883 (March
13, 1997). If a complainant is dissatisfied with the processing of
her prior complaints, she should be referred to the agency official
responsible for the quality of complaints processing. Agency officials
should earnestly attempt to resolve dissatisfaction with the complaints
process as early and expeditiously as possible. EEOC Equal Employment
Opportunity Management Directive for 29 C.F.R. �1614, chap.4, pages 8 and
9 (October 1992). Consequently, the agency properly dismissed allegations
(c), (e), and (i) pursuant to 29 C.F.R. �1614.107(a).
Allegations (b) and (d) concern the CO's alleged failure to assist
appellant regarding an Employee Relations Specialist who allegedly made
false statements to the Department of Labor, and others within the context
of appellant's Office of Workers' Compensation Programs ("OWCP") claim.
Appellant alleged that the CO's actions resulted in the denial of benefits
she was due. We find that the foregoing represents a collateral attack
on the OWCP process. The Commission has held that an employee cannot
use the EEO complaint process to lodge a collateral attack on another
proceeding. Kleinman v. USPS, EEOC Request No. 05940585 (September
22, 1994); Lingad v. USPS, EEOC Request No. 05930106 (June 24, 1993).
The proper forum for appellant to have raised her challenges to actions
which occurred during the processing of her OWCP claim was with OWCP
itself. It is inappropriate to now attempt to use the EEO process to
collaterally attack actions which occurred during the processing of her
OWCP claim. Accordingly, allegations (b) and (d) were properly dismissed
for failure to state a claim.
In allegation (f), appellant alleged that an agency official failed to
maintain a continuing affirmative employment program. We find that
appellant failed to specify a personal harm that she suffered with
respect to a term, condition, or privilege of her employment as a result
of this failure. Accordingly, the agency's dismissal of allegation (f)
was proper.
The agency dismissed allegation (g) on the basis that it the same
claim that was pending before or decided by the agency or Commission.
However, the agency failed to provide in the record a copy of the previous
complaint, or any other evidence supporting its finding. Thus, the agency
has failed to substantiate the bases for its final decision. See Marshall
v. Department of the Navy, EEOC Request No. 05910685 (September 6, 1991).
Accordingly, the agency's dismissal of allegation (g) was improper.
In allegation (h), appellant alleged that she was subjected to
discrimination when the agency sent her former attorney a copy of its
notice of receipt of appellant's discrimination complaint. Appellant
failed to show how this action caused her to suffer harm to the terms,
conditions, or privileges of her employment as a result of the agency's
action. Consequently, allegation (h) was properly dismissed for failure
to state a claim.
Finally, we note that the dismissal of the basis of reprisal for
whistleblowing was proper. EEOC Regulation 29 C.F.R. �1614.101(b)
provides that no person shall be subject to retaliation for opposing any
practice made unlawful by Title VII of the Civil Rights Act (Title VII)
(42 U.S.C. �2000e et seq.), the Equal Pay Act (29 U.S.C. �206(d)) or the
Rehabilitation Act (29 U.S.C. �791 et seq.) or for participating in any
stage of administrative or judicial proceedings under these statutes.
The regulations do not cover retaliation for whistleblowing.
Accordingly, the agency's dismissal of allegations (b) - (f), (h),
and (i), and the basis of reprisal was proper and is AFFIRMED for the
reasons set forth herein. The agency's decision to dismiss allegation
(g) was improper, and is hereby REVERSED. Allegation (g) is REMANDED
to the agency for further processing in accordance with this decision
and the Order below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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 (T0993)
This decision affirms the agency's final decision 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 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.
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. 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 (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:
November 24, 1998
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations