01983925
06-29-1999
Gloria Colar, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Gloria Colar v. Department of the Navy
01983925
June 29, 1999
Gloria Colar, )
Appellant, )
) Appeal No. 01983925
v. )
) Agency No. 97-60036-007; 98-60036-001
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision concerning her two complaints 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 Age Discrimination in
Employment Act of 1967, as amended, 29 U.S.C. �621 et seq. and �501
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq.
The appeal is accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaints for failure to state a claim.
BACKGROUND
Appellant filed two formal complaints, one on September 24, 1997 and the
other on October 7, 1997, alleging discrimination on the bases of race
(African-American), color (Black), religion (Church of the Living God),
age (d.o.b., October 13, 1943), mental disability (stress) and reprisal
(prior EEO activity). Specifically, appellant alleges that the agency,
on several occasions (thus the reason for more than one complaint),
refused to reframe and process the proper issues in her original complaint
(not at issue here), thereby subjecting her to continued harassment and
undue emotional distress.
In its final agency decision, the agency dismissed both complaints upon
concluding that the issues contained therein failed to allege additional
personnel actions on the part of the agency, and thus failed to state
a claim that conformed to the requirements of 29 C.F.R. �1614.106(c).
This appeal followed.
ANALYSIS AND FINDINGS
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).
The Commission has held that an allegation which relates to the processing
of a previously filed complaint does not state an independent allegation
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). If a complainant
is dissatisfied with the processing of his/her pending complaint, he/she
should be referred to the agency official responsible for the quality of
complaints processing. It is important to note, however, that agency
officials should earnestly attempt to resolve dissatisfaction with the
complaints process as early and expeditiously as possible. See EEO
MD 110 (4-8). In the present case, given the nature of appellant's
allegations of improper processing, we find that the proper method for
addressing such matters would be within the continued processing of the
previously filed complaint or on appeal from the final agency decision
issued therein. Any remedial relief to which appellant would be entitled
would necessarily involve the processing of the underlying complaint.
Consequently, the agency properly dismissed both complaints pursuant to
29 C.F.R. �1614.107(a).
Accordingly, the decision of the agency was proper and, therefore,
is AFFIRMED.
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 (S0993)
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. 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 29, 1999
______________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations