Claud A. Caviness, Appellant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionApr 28, 1999
01983903 (E.E.O.C. Apr. 28, 1999)

01983903

04-28-1999

Claud A. Caviness, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Claud A. Caviness v. Department of the Navy

01983903

April 28, 1999

Claud A. Caviness, )

Appellant, )

)

v. ) Appeal No. 01983903

) Agency No. DON-98-60701-002

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

)

DECISION

The Commission finds that the agency's March 18, 1998 decision dismissing

appellant's complaint on the basis of failure to state a claim, was not

proper, in part, pursuant to the provisions of 29 C.F.R. �1614.107(a).

The record shows that appellant alleged that he had been continuously

harassed and discriminated against on the bases of race (African

American), national origin (African), color (black), sex (male), age

(12/31/36), mental disability (mental), and reprisal for prior EEO

activity when: (a) Employee A received and provided personal medical

information concerning appellant to Employee B and the Human Resources

Office, which was used in part to terminate appellant's employment in

December 1996; (b) in August 1996, Employee A provided false information

to OWCP to controvert appellant's claim for benefits, which resulted in

denial of appellant's claim; and, (c) appellant's request for precomplaint

EEO counseling was refused by EEO office personnel at naval Weapon

Station Concord. A review of the record shows that when appellant tried

to seek EEO counseling he was informed by the EEO office at Concord that

he would need to seek counseling at the EEO office in Seal Beach.

The agency issued a final decision dismissing the complaint on the

grounds of failure to state a claim. Regarding allegation (a), the

Commission also found that appellant had filed an appeal to the Merit

Systems Protection Board (MSPB) on his removal. Regarding allegation

(c) the agency found that "it had been a long standing practice of the

former Deputy EEO officer to provide an EEO counselor from another Navy

activity to complainants who alleged discrimination at the hands of

[the deputy EEO officer's] supervisor".

An agency shall accept a complaint from any aggrieved employee or

applicant 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

has held that while the regulations do not define the term "aggrieved

employee," the United States Supreme Court has interpreted it to mean

an employee 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 (Apr. 21, 1994).

"To state a claim under our regulations, an employee must allege and show

an injury in fact." Id. (citing Hackett v. McGuire Bros., 445 F.2d 447

(3d Cir. 1971)). "Specifically, an employee must allege and show a

`direct, personal deprivation at the hands of the employer,' that is,

a present and unresolved harm or loss affecting a term, condition or

privilege of his/her employment." Id. (citing Hammonds v. United States

Postal Serv., EEOC Request No. 05900863 (Oct. 31, 1990); Taylor v. United

States Postal Serv., EEOC Request No. 05900367 (June 2, 1990)).

The Commission finds that allegation (a) alleges that the agency

discriminatorily violated appellant's confidentiality. This constitutes

a harm to a term, condition or privilege of appellant's employment.

Andersen v. United States Postal Service, EEOC Appeal No. 01970216

(October 24, 1997). However, we find that it is proper to dismiss

this issue pursuant to Section 1614.107(d) because it is inextricably

intertwined with an issue that was raised before the MSPB. Accordingly,

allegation (a) was properly dismissed.

We have previously held that allegations which challenge the proceeding

or decision of another forum constitute a collateral attack and fail to

state a claim under EEOC Regulations. Fisher v. Department of Defense,

EEOC Request No. 05930106 (July 15, 1994). The Commission has also held

that it is within OWCP's jurisdiction to determine whether a compensation

claim with OWCP has merit, and OWCP claims are not appealable to the EEOC.

Hogan v. Department of the Army, EEOC Request No. 05940407 (September

29, 1994).

In allegation (b) appellant claims that the agency provided false

information to OWCP to controvert his claim for benefits, which resulted

in a denial of his claim. We find that this allegation constitutes

a collateral attack on the OWCP process. Therefore, allegation (b)

has failed to state a claim under EEOC Regulations.

In allegation (c) appellant claims that his request for precomplaint

EEO counseling was refused by EEO office personnel at naval Weapon

Station Concord and that he was informed that he would need to seek

counseling at the EEO office in Seal Beach. The record shows that

appellant received the EEO counseling and subsequently filed his formal

complaint. Moreover, appellant has failed to contradict the agency's

argument that the agency had a long standing practice of referring claims

against Employee A to "another Navy activity". We find that allegation

(c) refers to the processing of the appellant's informal complaint of

discrimination. Therefore, appellant must bring this allegation regarding

the processing of his complaint to the appropriate agency officials.

Trujillo v. Department of the Air Force, EEOC Request No. 05950177 (June

13, 1996); EEO MD 110, p.4-8 (October 22, 1992). Accordingly, allegation

(c) was properly dismissed on the basis of failure to state a claim.

Based on the foregoing, we find that the agency properly dismissed

allegations (a), (b) and (c).

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. �l6l4.604(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. 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:

April 28, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations