01982610
06-17-1999
Geraldine Lujan, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency
Geraldine Lujan v. Department of the Air Force
01982610
June 17, 1999
Geraldine Lujan, )
Appellant, )
) Appeal No. 01982610
v. ) Agency No. KV1M98005
)
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The final agency decision was dated January
15, 1998, and received by appellant on January 23, 1998. The appeal
was postmarked on February 23, 1998. Accordingly, the appeal is timely
(see 29 C.F.R. �1614.402(a)), and is accepted in accordance with EEOC
Order No. 960, as amended.<1>
ISSUES PRESENTED
The issues on appeal are 1) whether the agency properly dismissed a
portion of appellant's complaint because the claims were the same claims
that were pending before or had been previously decided by the agency,
and 2) whether the agency properly dismissed another portion for failure
to state a claim.
BACKGROUND
Appellant filed a formal complaint on December 17, 1997, alleging
discrimination on the basis of reprisal (prior EEO activity).
Her complaint had the following eight allegations:
1) on September 19, 1997, her supervisor placed her in an Absent Without
Leave (AWOL) status;
2) on October 9, 1997, her supervisor suspended her for 3 days without
pay, effective October 14, 1997;
3) on October 20, 1997, her supervisor became angry with her, told her
not to use her computer, demanded her "certifying stamp," did not assign
her work and denied her request for administrative leave to prepare for
and attend her civil lawsuit trial on November 3, 1997;
4) she was shunned by other employees who feared reprisal from
management;
5) on October 24, 1997, her supervisor subjected her to intentional
infliction of emotional distress in his office;
6) her supervisor illegally continued to keep her on unexcused absence
unless she agreed to his "irrational and shameful" demand for medical
justification;
7) the Chief EEO Counselor covered up the discriminatory scheme of
appellant's supervisors and other employees at appellant's work facility,
and did nothing to resolve appellant's serious complaints; and,
8) an EEO Counselor told her that it was the policy of the Chief EEO
Counselor to provide the names of EEO complainants to the Employee
Management Relations office as soon as they filed a complaint.
In its final agency decision, the agency accepted allegation 2 for
investigation and dismissed allegations 1 and 3 through 8. Allegations 1,
6 and 7 were each dismissed on the grounds that they stated the same
claim as one pending before or already decided by the agency. The FAD
specified that these three allegations were addressed in the complaint
appellant filed on December 8, 1997, agency complaint number KV1M97003.
Allegations 3, 4, 5 and 8 were dismissed on the grounds that appellant
failed to state a claim because she was not aggrieved. This appeal
followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency shall
dismiss a complaint that states the same claim that is pending before
or has been decided by the agency or Commission. The Commission
has consistently held that in order for a complaint to be dismissed
as identical, the elements of the complaint must be identical to the
elements of the prior complaint in time, place, incident and parties.
See Jackson v. Department of the Air Force, EEOC Appeal No. 01955890
(April 5, 1996). The agency's statement in opposition to the appeal
provides a copy of the FAD from complaint KV1M97003, and asserts that the
FAD from complaint KV1M97003 accepted a claim identical to allegation
1 for investigation, and dismissed claims identical to allegations 6
and 7. In that FAD, accepted for investigation is the allegation that
appellant's supervisor placed her in an AWOL status during pay periods
21 and 22 after another supervisor had verbally approved her request
for 30 days sick leave. Not in the record, however, is any evidence
detailing the dates covered by pay periods 21 and 22. In the absence of
this evidence, the Commission is unable to determine whether allegation 1
is identical in time to the allegation accepted for investigation in the
previous complaint. Therefore, the decision of the agency is vacated
with respect to allegation 1.
The dismissed allegations from complaint KV1M97003 that the agency
claims correspond to allegations 6 and 7 are: 1) on September 19,
1997, while she was on sick leave, her supervisor allegedly ordered
her to come in and pick up a letter from him for her doctor, and the
supervisor requested that she authorize him to speak to her doctor; 2)
her supervisor allegedly threatened to suspend her based on his demand
that her doctor provide him with a medical report; 3) EEO Counselors have
refused to investigate her charges in a neutral manner, and have summarily
dismissed her EEO complaints in a letter dated August 10, 1997; and, 4)
particular employees of the agency are creating a hostile work environment
by harassing and discriminating against her. All four allegations
were dismissed for failure to state a claim. The agency asserts, and a
check of the Commission records confirms, that appellant did not file an
appeal of the FAD from complaint KV1M97003. Allegation 6 contains the
same elements as complaint KV1M97003 allegations 1 and 2. Allegation 7
has the same characteristics as complaint KV1M97003 allegation 3. It is
the decision of the Commission that allegations 6 and 7 in the instant
complaint are the same claims as those dismissed in complaint KV1M97003,
and therefore were properly dismissed by the agency.
Allegations 7 and 8 allege improprieties in the manner in which the EEO
office at the agency processed appellant's complaints. The Commission
has held that allegations of improper processing do not state independent
claims of employment discrimination. See Kleinman v. U.S. Postal Service,
EEOC Request No. 05940579 (September 22, 1994); Story v. U.S. Postal
Service, EEOC Appeal No. 01965883 (March 13, 1997). When such allegations
are raised, the agency should refer the complainant to the agency
officials responsible for the quality of complaints processing. Agency
officials should earnestly attempt to resolve dissatisfaction with the
complaints process as early as possible. See EEOC Management Directive
(MD) 110 (4-8). Pursuant to EEO MD-110, the agency only has to process
those complaints in which the individual alleges that he or she was
treated differently, or is being adversely affected by a policy or
practice having a discriminatory effect on the processing of his or
her complaint. Therefore, appellant is advised to contact the official
at her agency who handles the quality of complaints processing. It is
the decision of the Commission that allegations 7 and 8 were properly
dismissed on the grounds that they failed to state a claim.
The agency dismissed allegations 3, 4, and 5 for failure to state
a claim. In allegation 3, appellant was told not to use her computer,
had to turn in her "certifying stamp," was given no work and had her
request for administrative leave denied. Appellant claimed that she
was shunned by other employees who feared reprisal from management
(allegation 4). Allegation 5 alleged that her supervisor subjected
her to intentional infliction of emotional distress when he yelled at
her, "menaced angrily at her," accused her of loafing and talking to a
co-worker for too long, accused her of making malicious statements about
another employee, and threatened to fire her. Together with allegation
1, these three allegations are illustrative of appellant's overall
claim that she has been the subject of harassment due to her prior EEO
activity. The Commission has previously held that when confronted with
claims involving multiple allegations, an agency should not ignore the
"pattern aspect" of a complainant's allegations and define the issues
in a piecemeal manner where an underlying theme unites the matters
complained of. Meaney v. Department of the Treasury, EEOC Request
No. 05940169 (November 3, 1994), Ferguson v. Department of Justice,
EEOC Request No. 05970792 (March 30, 1999). While these allegations
when viewed in isolation may not state a claim, when viewed together the
incidents are supporting evidence of appellant's claim of harassment.
Therefore, the agency should investigate allegations 1, 3, 4, and 5 as
evidence of appellant's broader claim of harassment based on reprisal.
If upon further investigation, allegation 1 is found to be identical to
the issue accepted for investigation in complaint KV1M97003 then that
complaint, if still pending before the agency, should be consolidated
with the instant one and both should be processed together.
Accordingly, the decision of the agency regarding allegation 1 is VACATED
and is REMANDED for further processing in accordance with this decision
and the proper regulations. The decision regarding allegations 3, 4 and
5 was improper and is REVERSED and is REMANDED for further processing
in accordance with this decision and the proper regulations. The agency
decision with respect to allegations 6, 7 and 8 is AFFIRMED.
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 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 (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:
June 17, 1999
______________ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 An appellant has thirty calendar days from the date of receipt of the
final agency decision (FAD) to file an appeal. The time limitation is
extended to the next business day if the last day to file the appeal falls
on a weekend or holiday. See 29 C.F.R. �1614.402(a) and �1614.604.
Appellant's appeal of the FAD had to be filed by February 22, 1998, a
Sunday. The next business day was Monday, February 23, 1998. Appellant's
appeal was postmarked on February 23, 1998, and was therefore timely filed.