01983354_r
05-12-1999
Geraldine Lujan, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Geraldine Lujan, )
Appellant, )
)
)
v. ) Appeal No. 01983354
) Agency No. KV1M98008
)
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
______________________________)
DECISION
On March 24, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by her attorney of record on
February 29, 1998, pertaining to 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. In her complaint, appellant
alleged that she was subjected to discrimination in reprisal for prior
EEO activity when:
Appellant's supervisor (S1) placed appellant on 32 hours of Absence
Without Leave (AWOL) for pay periods ending November 8 and 22, 1997
after he allegedly told her representative that he would approve her
request for annual leave to prepare for and attend her trial;
On or about December 8, 1997, S1 removed appellant's password from the
computer system thereby making her unable to perform her duties;
On or about December 15, 1997, a co-worker (CW1) was �gossiping� with
another co-worker, however, no action was taken against those employees,
meanwhile appellant's work is scrutinized and she is accused of loafing;
In June 1997, in response to an agency EEO Counselor's call to discuss
another individual's EEO complaint, appellant was sent to a supervisor's
office to take the call and felt intimidated because she felt the
supervisor would learn of her testimony and retaliate against her;
In July 1997, after appellant wrote a letter to the agency's EEO Director
concerning alleged harassing acts by another employee, appellant was
subjected to reprisal and discrimination by agency officials;
On September 19, 1997, S1 placed appellant on AWOL even though she was
on approved sick leave;
On October 9, 1997, S1 suspended appellant for three days;
On October 20, 1997, S1 demeaned and humiliated appellant by shaking
documents at her, yelling at her, and telling her she was not to use
the computer;
On an unspecified date, S1 demanded that appellant turn in her
�certifying� stamp and denied her request for administrative leave to
prepare and attend her civil lawsuit trial;
On October 24, 1997, S1 accused appellant of loafing for 25 minutes
while talking with a co-worker;
S1 continues to keep appellant on unexcused absence for September 19,
1997 through October 17, 1997, unless appellant agrees to S1's demand
for medical justification;
On August 15, 1997, S1 gave appellant a Notice of Reprimand for failing
to comply with his proper order; and
Two agency EEO Counselors ignored appellant's complaints.
The agency accepted allegation (1) for investigation; dismissed
allegations (2), (3), (4), (5), and (13) pursuant to EEOC Regulation 29
U.S.C. �1614.107(a), for failure to state a claim; dismissed allegations
(4) and (5), alternatively, pursuant to 29 U.S.C. �1614.107(b), for
failure to initiate contact with an EEO Counselor in a timely manner; and
dismissed allegations (6) through (12) pursuant to 29 U.S.C. �1614.107(a),
for stating the same claims that were raised in prior complaints appellant
filed, identified as Agency Nos. KV1M97003, KV1M97005, and KV1M98001.
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, 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;
�1614.106(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 find that the agency erred in dismissing allegation (2) for failure to
state a claim. Therein, appellant alleged that S1 removed her password
from the computer system, thereby denying appellant the ability to
perform the duties of her position. We find that this allegation
clearly identifies harm to the terms, conditions, or privileges of her
employment, i.e., that due to S1's actions, appellant was unable to
perform the essential functions of her position. Clearly, therefore,
appellant is aggrieved under the EEOC regulations.
We find that appellant is not aggrieved for the purposes of 29
U.S.C. �1614 as a result of the incidents identified in allegations (3),
(4), (5), and (13). For each of these allegations appellant failed
to show how she suffered harm to the terms, conditions, or privileges
of her employment. Allegation (3) concerned management's response to
alleged improper conduct by third parties which had no direct impact
on appellant.<1>
We find that allegation (4) concerns speculative and possible future harm.
See Stroud v. Department of the Treasury, EEOC Appeal No. 01952101
(October 26, 1995); Spencer v. Department of the Navy, EEOC Appeal
No. 01942408 (June 1, 1994). Appellant is predicting the potential for
a future harm, i.e., reprisal for being interviewed in conjunction with
a co-worker's EEO complaint. There is no present injury to appellant,
however. Accordingly, the absence of an actual present harm dictates
the conclusion that appellant has failed to state a claim. See Parks
v. Department of Defense, EEOC Request No. 059503141 (September 11, 1995)
citing Drummond v. Department of the Army, EEOC Request No. 05940574
(February 7, 1995).
We find that allegation (5) is too vague to state a claim under 29
C.F.R. �1614. EEOC Regulation 29 C.F.R. �1614.106(c) provides that
a complaint must contain a statement that is sufficiently precise to
describe generally the action(s) or practice(s) that form the basis of
the complaint. By contrast, allegation (5) merely alleges unspecified
�reprisal and discrimination� by agency officials after appellant wrote
a letter to the agency's EEO Director. Appellant failed to identify
with particularity the acts of reprisal and discrimination, the dates
on which they occurred, and the person(s) responsible for the actions.
Accordingly, we find that dismissal of allegation (5) was proper.
We find that allegation (13) concerns the processing of appellant's EEO
complaints by the agency's EEO counseling staff. The Commission has held
that an allegation which relates to the processing of an EEO complaint
does not state an independent allegation of employment discrimination.
See Kleinman v. U.S. Postal Service, EEOC Appeal No. 05940579 (September
22, 1994); Story v. U.S. Postal Service, EEOC Appeal No. 01965883
(March 13, 1997). If a complainant is dissatisfied with the processing
of her pending complaint, she should be referred to the agency official
responsible for the quality of complaints processing. Agency officials
should earnestly attempt to resolve dissatisfaction with the complaints
process as early and expeditiously as possible. See EEO MD 110 (4-8).
Based on the foregoing, we find that the agency properly dismissed
allegations (3), (4), (5), and (13) pursuant to 29 C.F.R. �1614.107(a).<2>
EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that states the same claim
that is pending before or has been decided by the agency or Commission.
In the instant case, the record discloses that appellant raised the
matters identified in allegations (6) through (12) in the context of her
prior EEO complaints, Agency Nos. KV1M97003, KV1M97005, and KV1M98001.
As a result, we find that the agency's dismissal of allegations (6)
through (12) pursuant to 29 U.S.C. �1614.107(a), was proper.
Accordingly, the agency's decision to dismiss allegations (3) through (13)
is AFFIRMED for the reasons set forth herein. The agency's decision to
dismiss allegation (2) is hereby REVERSED. Allegation (2) is REMANDED
to the agency for further processing in accordance with this decision
and the Order below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation 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 filed your appeal with the
Commission. 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:
May 12, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
1Appellant is advised, however, that she may use this incident
as background information to highlight the differences in the
way that management responded to alleged misconduct by others as
compared to management's responses to alleged misconduct committed
by appellant.
2Since we are affirming the agency's dismissal of allegations (4) and
(5) on the grounds of failure to state a claim, we will not address the
agency's alternative grounds for dismissal, i.e., that they were untimely.