Complainant,v.Dr. Ernest Moniz, Secretary, Department of Energy, Agency.

Equal Employment Opportunity CommissionJul 15, 2014
0120141185 (E.E.O.C. Jul. 15, 2014)

0120141185

07-15-2014

Complainant, v. Dr. Ernest Moniz, Secretary, Department of Energy, Agency.


Complainant,

v.

Dr. Ernest Moniz,

Secretary,

Department of Energy,

Agency.

Appeal No. 0120141185

Agency No. 130101-SRO

DECISION

Complainant filed a timely appeal with this Commission from the Agency's final decision dated January 27, 2014, dismissing a formal 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.

BACKGROUND

Complainant, a former employee at the Agency's Savannah River Operations Office in Aiken, South Carolina, filed a formal complaint on October 16, 2013.1 Therein, Complainant claimed that the Agency subjected him to discrimination on the bases of national origin and in reprisal for prior EEO activity when:

on or around the time period of October 23, 2011 to December 16, 2011, Agency management sent him information and points of contact regarding a debt collection matter.

Complainant further alleged that he was subjected to harassment when he received letters from the US Treasury Collection of Financial Management Service and received harassing phone calls from a debt collection agency.

On January 27, 2014, the Agency issued a final decision. The Agency dismissed the formal complaint pursuant to 29 C.F.R. 1614.107(a)(1), for failure to state a claim. Specifically, the Agency determined that the instant complaint constituted a collateral attack against proceedings in another forum, specifically the Debt Collection Act.

The instant appeal followed.

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).

In the instant case, we find that the Agency properly dismissed the formal complaint. Complainant's receipt of a letter of indebtedness under the Debt Collection Act is not within the jurisdiction of the Commission. The Commission has previously held that challenges to an agency's actions under the Debt Collection Act are not within the scope of the EEO complaint process. Amato v. Department of the Army, EEOC Request No. 0520070240 (July 18, 2007). The proper forum for Complainant to challenge the appropriateness of the collection process and the validity of the debt is through the administrative process of the Debt Collection Act.

Moreover, we have reviewed Complainant's appellate assertions, and determine that the Agency properly identified the matter raised in the formal complaint. Finally, we find that the claims, even if proven to be true and viewed in a light most favorable to Complainant, would not indicate that Complainant has been subjected to harassment that was sufficiently severe or pervasive to alter the conditions of employment. See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).

Accordingly, the Agency's final decision dismissing the formal complaint for failure to state a claim is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0610)

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), at 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 77960, Washington, DC 20013. 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 (S0610)

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 (Z0610)

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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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

July 15, 2014

__________________

Date

1 The record reflects that on October 31, 2010, Complainant retired from Agency employment.

---------------

------------------------------------------------------------

---------------

------------------------------------------------------------

2

0120141185

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120141185

5

0120141185