01a02205
08-23-2000
Cynthia Trahan, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Cynthia Trahan v. Department of Transportation
01A02205
August 23, 2000
.
Cynthia Trahan,
Complainant,
v.
Rodney E. Slater,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A02205
Agency No. DOT-6-00-6014
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated December 14, 1999, dismissing her 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq.<1> The appeal is accepted pursuant to 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
On November 8, 1999, complainant filed a formal EEO complaint claiming
that she was the victim of unlawful employment discrimination and
harassment on the bases of her sex (female), age and in reprisal for
prior EEO activity when:
On July 16, 1999, complainant discovered that her workers' compensation
claim had been denied because management provided false information;
On July 13, 1999, an officer from FAA security wanted complainant to
sign a new form with her married name;
On June 22, 1999, complainant learned that her supervisor made derogatory
remarks about her with respect to her bid to SFO;
On July 15, 1999, complainant claims to have been discriminated against
because the way her formal complaints are being handled and dismissed;
and
On June 10, 1999 the FAA violated the Privacy Act when complainant's
medical information was requested.
On December 14, 1999, the agency issued a final decision dismissing
the complaint. With respect to claims 1, 2,3, and 5, the agency found
that these claims failed to state a claim. The agency also dismissed
claim 4 for alleging dissatisfaction with a previously filed complaint.
The Commission finds that the agency properly dismissed claim 4 for
alleging dissatisfaction with the processing of previously filed
complaints. 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified as 29
C.F.R. � 1614.107(a)(8)).
The agency properly dismissed claims 1, 2, 3, and 5 for failure to
state a claim. The regulation set forth at 64 Fed. Reg. 37,644,
37,656 (1999)(to be codified and hereinafter cited as 29 C.F.R. �
1614.107(a)(1)) provides 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). An aggrieved employee is a person who has suffered
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).
Complainant has failed to establish that she is an aggrieved employee
as a result of claims 2 and 3. Furthermore, we find that claims 2
and 3 even when considered within the context of the larger claim of
harassment, are too isolated and insufficiently severe to state a claim
of a hostile work environment. See Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997).
The Commission finds that claim 1 amounts to a collateral attack
on an OWCP decision. Where a complainant alleges that the agency
discriminated in a manner pertaining to the merits of the workers'
compensation claim, for example, by submitting paperwork containing
allegedly false information, then the complaint does not state an EEO
claim. Pirozzi v. Department of the Navy, EEOC Request No. 05970146
(October 23, 1998)(allegedly false statements made by agency to OWCP
during OWCP's processing of a workers' compensation claim goes to merits
of compensation claim); Hogan v. Department of the Army, EEOC Request
No. 05940407 (September 29, 1994) (reviewing an allegation that agency
officials provided misleading statements to OWCP would require the
Commission to essentially determine what workers' compensation benefits
the complainant would likely have received); Reloj v. Department of
Veterans Affairs, EEOC Request No. 05960545 (June 15, 1998) (allegation
that agency's provision of false information to the OWCP resulted
in denial of benefits is a collateral attack on OWCP's decision and,
thus, fails to state a claim). Because complainant's complaint in the
case at hand concerns allegedly false information provided to the OWCP
by the agency, the allegation fails to state a claim. Although the
Commission has held that a complainant may not use the EEO process
to launch a collateral attack on the workers' compensation process,
the Commission has recognized very narrow exceptions to the general
prohibition on collateral attacks. See Story v. U.S. Postal Service,
EEOC Request No. 05960314 (October 18, 1996); Lau v. National Credit Union
Administration, EEOC Request No. 05950037 (March 18, 1996). However,
claim 1 in the case at hand does not fall within these narrow exceptions.
In claim 5, complainant alleged that the FAA violated the Privacy Act.
The Commission has held that jurisdiction over alleged violations of
the Privacy Act rests exclusively with United States District Courts.
See Story v. USPS, EEOC Appeal No. 01953767 (October 18, 1995); Concon
v. USPS, EEOC Appeal No. 01965280 (May 14, 1997)(allegation that Privacy
Act violated when a supervisor allegedly allowed a coworker to read
appellant's CA-1 form and coworker discussed its contents with other
employees failed to state a claim because allegation of a Privacy Act
violation is not within the purview of the EEO process); Ogden v. USPS,
EEOC Appeal No. 01965916 (July 17, 1997)(allegation that an agency
official's letter to DOL's OWCP divulged private matters and contained an
accusation of perjury regarding appellant and was false and misleading and
that the information was considered by the DOL's OWCP was an impermissible
collateral attack on the manner in which the agency represented itself in
the DOL's OWCP forum). See also Bucci v. Department of Education, EEOC
Request No. 05890289 (April 12, 1989)(alleged violation of the Privacy
Act is outside the purview of the EEO process): Osborn v. USPS, EEOC
Request No. 05950654 (February 15, 1996). Consequently, the Commission
finds that claim 5 regarding a Privacy Act violation is not within the
purview of the EEO process and as a result fails to state a claim.
The agency's decision dismissing the subject complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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 23, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.