01985086
09-03-1999
Bryan Hill, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Bryan Hill v. Department of the Navy
01985086
September 3, 1999
Bryan Hill, )
Appellant, )
)
v. ) Appeal No. 01985086
) Agency No. DON-98-60530-001
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
On June 6, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD), dated May 28, 1998, pertaining to
his complaint of unlawful employment discrimination in violation of
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. �621 et seq., �501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. �791 et seq., and Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq. The Commission accepts appellant's
appeal in accordance with EEOC Order No. 960, as amended.
In his complaint, appellant alleged that he was subjected to
discrimination when:
False and malicious statements were made by Business Systems Department
personnel in reprisal for reporting computer misappropriation;
on the bases of age (56), sex (male), and perceived mental disability
(senility) when:
In the March 1997 time frame, appellant confirmed that he was the subject
of a conversation amongst contracts personnel of the Naval Air Warfare
Center Weapons Division China Lake at a dinner on 14 January 1997;
On 24 September 1997, appellant's Freedom of Information Act request
for an investigative report regarding the above-referenced dinner was
denied;
Two agency officials have harassed appellant by making disparaging
statements regarding appellant's character; and
NAVAIR personnel have harassed appellant by making disparaging statements
regarding appellant's character.
The agency dismissed allegations 1, 3, and 5 for failure to state a
claim; allegation 2 for untimely EEO contact; and allegations 4 and 5
for raising a matter that that has not been brought to the attention of
a Counselor and is not like or related to a matter that has been brought
to the attention of a Counselor. Specifically, the agency found that
allegation 1 is not redressable under 29 C.F.R. �1614.103; allegation
2 was brought to the attention of a Counselor on August 21, 1997, which
is beyond the 45-day limitation; allegation 3 is not acceptable due to
lack of jurisdiction; allegation 4, involving alleged harassment, was not
raised in counseling and is not in any way similar to the other issues
raised; and allegation 5 involves personnel from a different agency, and
is also not in any way similar to the other issues raised in counseling.
The record indicates that appellant was the subject of a dinner
conversation among contracts personnel of the Naval Air Warfare Center
Weapons Division China Lake. Appellant alleged that he was being
referred to as "senile" and comments were made that he "should have been
forced to retire five years ago." Appellant requested an investigation
of this matter, which ultimately became the subject of his FOIA request.
On appeal, appellant contends that the agency failed to properly
investigate his complaint that he was subjected to a hostile, abusive,
biased and discriminatory work environment. Appellant also asserts that
the issue involving the denial of his FOIA request was raised with the
EEO Counselor.
In response, the agency notes that allegation 1 is not afforded
protection under Title VII because it involves "whistleblowing," which
is addressed under a separate and distinct statute. Furthermore, the
agency finds that appellant has not shown an injury because words are
not enough to render an individual aggrieved for purposes of Title VII.
Regarding allegation 2, the agency's position is that because appellant
should have reasonably suspected discrimination in March 1997, the 45-day
period expired in the latter part of May 1997. Also, the agency contends
that appellant has not shown any harm with respect to these remarks.
Concerning allegation 3, the agency asserts that FOIA regulations govern
FOIA requests, not the EEO Regulations. Additionally, the agency reveals
that appellant ultimately received a copy of the requested investigative
report; thus, appellant's allegation is moot. With regard to allegations
4 and 5, the agency finds no mention of the officials' disparaging
statements regarding appellant's character in the EEO Counselor's report.
Furthermore, the agency contends that these alleged comments are not
sufficient to render appellant aggrieved within the meaning of Title VII.
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).
As to allegation 1, it is well-settled that engaging in whistle-blowing is
not protected EEO activity. See Reavill v. Department of the Navy, EEOC
Appeal No. 05950174 (July 19, 1996). Here, appellant's reprisal claim,
for reporting computer misappropriation, is not alleging harm based on
protected EEO activity under the purview of Title VII, the ADEA, or the
Rehabilitation Act. Therefore, allegation 1, which is solely based on
reprisal for reporting computer misappropriation was properly dismissed
for failure to state a claim.
As to allegation 3, the Commission has held that it does not have
jurisdiction over the processing of FOIA requests. Instead, persons
having a dispute regarding such requests should bring any appeals about
the processing of his or her FOIA requests under the appropriate FOIA
regulations. Gaines v. Department of the Navy, EEOC Request No. 05970386
(June 12, 1997). In the instant case, therefore, appellant's allegation
that the agency improperly handled his FOIA request fails to state a
claim within the purview of the EEOC Regulations at 29 C.F.R. �1614,
and was properly dismissed by the agency.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity 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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
As to allegation 2, appellant clearly contacted an EEO Counselor well
beyond the 45-day limitation. Clearly, appellant was aware of the
alleged discriminatory action based on his request for an investigation
of the matter. The Commission has held that the use of the grievance
process or other internal appeal process does not toll the time limit for
contacting an EEO Counselor. See Speed v. USPS, EEOC Request No. 05921093
(June 24, 1993). Appellant failed to present adequate justification to
warrant an extension of the applicable time limit. Thus, the agency's
dismissal of allegation 2 is proper.
EEOC Regulation 29 C.F.R. �1614.107(b) states, in pertinent part, that
an agency shall dismiss a complaint or portion thereof which raises a
matter that has not been brought to the attention of an EEO Counselor,
and is not like or related to a matter on which the complainant has
received counseling. A later allegation or complaint is "like or related"
to the original complaint if the later allegation or complaint adds
to or clarifies the original complaint and could have reasonably been
expected to grow out of the original complaint during the investigation.
See Calhoun v. United States Postal Service, EEOC Request No. 05891068
(March 8, 1990); Webber v. Department of Health and Human Services,
EEOC Appeal No. 01900902 (February 28, 1990).
As to allegations 4 and 5, while not raised with the EEO Counselor, it
can be said that these allegations could have reasonably been expected to
grow out of the original complaint during the investigation. The agency
employees identified in allegations 4 and 5 were also identified in
connection with the dinner, which was the subject of EEO counseling,
and they also involve disparaging remarks about appellant, the same as
the remarks at the subject dinner. Therefore, the agency's dismissal
of allegations 4 and 5 for not being raised with a Counselor is improper.
Finally, with respect to allegation 5, the agency dismissed this
allegation on the alternative grounds that the proper agency against
which appellant should file is NAVAIR, since NAVAIR personnel were the
alleged responsible officials. The Commission notes, however, that it
appears based on the present record that NAVAIR personnel are employees
of the identified agency, i.e., the Department of the Navy. Therefore,
we find that allegation 5 appears to have been properly pursued against
the identified agency and states a proper claim.
CONCLUSION
For the reasons discussed above, the Commission AFFIRMS the agency's
dismissal of allegations 1, 2, and 3, but REVERSES the agency's dismissal
of allegations 4 and 5.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations 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:
Sept. 3, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations