01A20144_r
02-26-2003
Frederick K. Smith, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Frederick K. Smith v. Department of Veterans Affairs
01A20144
February 26, 2003
.
Frederick K. Smith,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A20144
Agency No. 200L-2000
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated August 30, 2001, dismissing his 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.
In his formal complaint, filed on January 21, 2001, complainant, an
agency Police Chief, alleged that he was subjected to discrimination
in reprisal for prior EEO activity when:
(a) on September 15, 2000, complainant reported that on this date an
employee, made false allegations against him during a Black Affairs
Committee on September 14, 2000. Complainant also alleged that the
employee made the same comments to another employee several days earlier;
(b) on September 20, 2000, the American Federation of Government
Employees (AFGE) Local # 2562 filed an unfair labor practice against
complainant for calling a meeting to discuss Union activities and issues
on August 3, 2000, at 10:00 a.m. Complainant never called such a meeting,
and was not at such a meeting;
(c) on September 21, 2000, the AFGE Local # 2562 filed an unfair labor
practice against complainant for advising a Union member not to seek
the union in a hiring issue. An agency Officer informed management
and complainant, that he never told a Union official or the union that
complainant advised him not to seek the union on any issue;
(d) on October 3, 2000, the AFGE President filed an EEO complaint against
complainant for threatening him during a meeting on October 2, 2000.
The union, EEO committee, Hospital Director and Associate Director were
present to discuss union concerns regarding the EEO committee assisting
employees, who feel they have some EEO concerns;
(e) on October 5, 2000, an AFGE Official using AFGE letterhead created
a materially false, fictitious, and fraudulent document and submitted
it to two EEO Specialists with the Office of Resolution Management.
The AFGE Official knew this document contained false, fictitious or
fraudulent statements. Complainant feels he did this in an attempt
to deceive the EEO process and prevent complainants from having their
complaints against him substantiated;
(f) on October 11, 2000, an AFGE Official filed an unfair labor practice
against complainant for filing an EEO complaint against him for violating
complainant's civil rights;
(g) on October 12, 2000, a child support inquiry about complainant
dated February 17, 1999, began circulating throughout the medical center.
Many employees brought the form to complainant saying they had received
it through the medical center mail;
(h) on October 19, 2000, an AFGE Official falsely accused complainant
of directing the security camera and staff to monitor him and another AFGE
Official. The AFGE Official made these false allegations to a detective;
(i) on October 24, 2000, an AFGE Official again falsely accused
complainant of having people monitor him. He made this comment to an
Officer on complainant's staff;
(j) on October 25, 2000, AFGE Official reported to VA Police that his
car had been stolen out of the Union parking space. When the Police
Officer responded to take a report, the AFGE Official stated to him,
�Ask [complainant] where is my GOD DAMN vehicle;�
(k) Reprisal for prior EEO activity: on September 15, 2000, complainant
contacted the Office of Resolution Management (ORM) to start his EEO
complaint process against a union official. Complainant gave case
#200L-1862 for his previous complaint. Sometime between September 15
and September 20, 2000, that union official was contacted and informed
that he had filed an EEO complaint against him and the intimidation,
harassment, coercion, threats and personal attacks started;
(l) Hostile work environment: Complainant alleges his workplace is
and has been permeated with intimidation, ridicule and insult, that
is sufficiently severe or persuasive to alter the conditions of his
employment and has created an abusive working environment;
(m) Harassment: Complainant feels medical center management has allowed
the condition of which he complained to exist;
(n) Failure to protect his privacy: A child support inquiry on him
was mailed to the agency and somehow got in the hands of the union.
No other employee's child support inquiry has been mailed through out
the entire medical center. Management knows about this incident and
has done nothing;
(o) Complainant reported a fraudulent document was submitted on official
American Federation of Government Employees (AFGE) letterhead in response
to his prior EEO complaint which deceived ORM into thinking it was
official union activity dated October 5, 2000. According to complainant,
this issue is currently in the hands of the U.S. Attorney's Office;
(p) on October 31, 2000, an AFGE Official made an inappropriate and
threatening remark, concerning complainant's employment position to one
of his subordinates, [Officer], when he stated, �your chief is going to
mess around and not make it off probation.�
(q) on June 1, 2001, an EEO Manager informed complainant, that he
was being accused of placing security cameras in the women's restrooms.
Complainant asked the EEO Manager who was making this accusation and her
reply was the union. Complainant told her that accusation was false and
it is illegal and unethical to place a camera in the washroom without a
court order. Complainant also told the EEO Manager that he took offense
to that accusation because of its perverted nature;
(r) on June 4, 2001, a Chief, Environmental Management Service (EMS)
informed complainant that a Union Vice President made direct accusations
to an employee, in the presence of his wife, about complainant placing
cameras in the women's restrooms. The Union Vice President further
stated that management and the union are working together to deal with
complainant on this issue;
(s) on June 4, 2001, complainant was informed by a Canteen Supervisor
that the union has a cartoon, posted on their bulletin board, which
depicts a woman using the restroom with about four cameras watching her
while in the act;
(t) on May 17, 2001, complainant was informed by an employee of
Engineering Service, that an AFGE Official had informed him that
complainant had threatened to arrest him, which he never did;
(u) on July 2, 2001, complainant learned for the first time that a union
representative, AFGE, St. Louis, Missouri, on two occasions reported
to a Deputy Assistant Secretary for Security and Law Enforcement, that
complainant was harassing an AFGE Official, failing to protect his safety
and inappropriate behavior;
(v) on May 17, 2001, at approximately 1:10 p.m., complainant was
approached by an Engineering Service employee, who informed him
that on May 16, 2001, an AFGE Official told him that complainant had
threatened to arrest him. Complainant contends that this is another
false accusation by an AFGE Official, who continues to harass him and
in light of his current EEO complaint against the agency he considers
this another discriminatory act; and
(w) Complainant also contends that he is tired of the inability of this
agency to stop the immoral, unethical, hostile and discriminatory acts
committed against him by an AFGE Official.
On August 30, 2001, the agency issued a final decision dismissing
claims (a) through (h) and claim (j) for addressing the same matter
raised in a prior complaint. Specifically, the agency concluded that
complainant filed an identical complaint on October 24, 2000, identified
as Complaint No. 200L-1862. The agency dismissed claim (n) on the grounds
that it is not a matter over which EEOC Regulation 29 C.F.R. 1614 has
any jurisdiction. Further, the agency noted that complainant cannot
use the EEO process to remedy an alleged Privacy Act violation.
The agency dismissed claims (i), (k) through (p) and claims (q) through
(w) for failure to state a claim. Specifically, the agency determined
that complainant's claims of discrimination are against union officials
acting in their union capacity (claims (i), (o) and (q) through (v)) and
that complainant's complaint has not alleged a personal loss as a result
of agency action. With respect to claim (p), the agency determined that
derogatory remarks do not harm a person for the purposes of stating a
claim and that complainant has not established that he has been aggrieved
by any of these incidents. Regarding claims (l), (m), (p) and (w) , the
agency noted that while complainant alleged he was subjected to a hostile
work environment by the agency, the agency determined that complainant
failed to establish that he has been aggrieved by any of these incidents.
Claims (a) - (h) and (j)
EEOC Regulation 29 C.F.R. 1614.107(a)(1) provides that the agency shall
dismiss a complaint that states the same claim that is pending before
or has been decided by the agency or Commission.
With respect to claims (a) - (h) and claim (j), the record reveals that
complainant filed a complaint, dated October 24, 2000, regarding the
same claims. In Complaint No. 200L-1862, complainant contends he was
discriminated against based on reprisal for prior EEO activity. A review
of the record persuades the Commission that the instant complaint raises
the same claims already pending before the agency or the Commission in
Complaint No. 200L-1862. Therefore, we find that the agency properly
dismissed claims (a) through (h) and (j) for addressing the same matters
raised in a prior complaint.
Claim (n)
With respect to claim (n), complainant claims that he was discriminated
against when a child support inquiry on him was mailed to the agency and
somehow got in the hands of the union. Complainant has failed to show how
the alleged incident resulted in a personal harm or loss regarding a term,
condition or privilege of his employment. Moreover, the Commission does
not enforce the Privacy Act, 5 U.S.C. 552(g)(1). See Bucci v. Department
of Education, EEOC Request Nos. 05890289, 05890290, 05890291 (April 12,
1989). The United States District Court holds exclusive jurisdiction for
claims involving the disclosure of identifiable information contained in
federal systems of records. Therefore, the Commission finds that the
agency properly dismissed claim (n) for involving a matter over which
the EEO does not have any jurisdiction.
Claim (o)
Regarding claim (o), we find that the agency properly dismissed it
for failure to state a claim. We find that the record reveals that
the matter identified in claim (o) is currently in the hands of the
U.S. Attorney's Office and that therefore it is properly dismissed from
the administrative EEO process.
Claims (i), (k), (l), (m), (p), and (q) - (w)
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).
We note the agency's contention that claims (i), (k), (l), (m), (p), and
(q) through (w) address union actions and not its own. The Commission
has held that, except in limited circumstances, the EEO process is not
a mechanism to attack internal union matters. See Bray v. Department
of the Treasury, EEOC Request No. 05940748 (March 23, 1995). However,
the issues raised in the subject claims do not expressly address union
matters. Instead, a fair reading of the record reflects that these
claims encompass matters over which agency management, and not merely
union officials, had influence. Specifically. the record reflects
that in these claims, complainant was purportedly subjected to harassment,
insults and threats, and that agency management did nothing to stop
such behavior. The agency decision to dismiss claims (i), (k), (l), (m),
(p) and (q) through (w) is hereby REVERSED. These claims are REMANDED
to the agency for further processing in accordance with the ORDER below.
Moreover, as discussed above, the agency's decision dismissing claims
(a) through (h), (j) for raising the same matter addressed in a prior
complaint, and claims (n) and (o) for failure to state a claim is
AFFIRMED.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant 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 complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant 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 (K0501)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant 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. �� 1614.407 and 1614.408.
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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 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 (T0900)
This decision affirms the agency's final decision/action 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 within ninety (90) calendar
days from the date that you receive this decision 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. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
February 26, 2003
_________________
Date