Gwendolyn Caison, Complainant,v.Linda M. Springer, Director, Office of Personnel Management, Agency.

Equal Employment Opportunity CommissionMay 15, 2007
0120064363 (E.E.O.C. May. 15, 2007)

0120064363

05-15-2007

Gwendolyn Caison, Complainant, v. Linda M. Springer, Director, Office of Personnel Management, Agency.


Gwendolyn Caison,

Complainant,

v.

Linda M. Springer,

Director,

Office of Personnel Management,

Agency.

Appeal No. 01200643631

Agency No. 2006027

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated June 16, 2006, 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.

Upon review, the Commission finds that complainant's complaint was

properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure

to state a claim. In a complaint dated May 24, 2006, complainant

alleged that she was subjected to discrimination on the bases of race

(African-American), sex (female), and color (light skinned) when the

agency issued a report of its audit of the Department of Health and

Human Service's (HHS) Atlanta Human Resource Center (AHRC) use of

delegated examining authority and the agency issued a report on AHRC

and forwarded its findings to HHS's Office of Inspector General (OIG)

and to the U.S. Office of Special Counsel (OSG).

The Commission notes that complainant is neither an employee nor an

applicant for employment with the agency. Rather, as an employee of HHS,

she is arguing that the agency unfairly audited her office and reported

its findings to the OIG and OSC. To the extent that complainant is

challenging the agency's audit of AHRC, the Commission has held that an

employee cannot use the EEO complaint process to lodge a collateral attack

on another proceeding. See Wills v. Department of Defense, EEOC Request

No. 05970596 (July 30, 1998); Kleinman v. United States Postal Service,

EEOC Request No. 05940585 (September 22, 1994); Lingad v. United States

Postal Service, EEOC Request No. 05930106 (June 25, 1993).

The Commission finds that the complaint fails to state a claim under the

EEOC regulations because complainant failed to show that she suffered harm

or loss with respect to a term, condition, or privilege of employment

for which there is a remedy. See Diaz v. Department of the Air Force,

EEOC Request No. 05931049 (April 21, 1994). Accordingly, the agency's

final decision dismissing complainant's complaint is affirmed.

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 (S0900)

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

May 15, 2007

__________________

Date

1 Due to a new Commission data system, this case has been redesignated

with the above-referenced appeal number.

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2

0120064363

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

3

0120064363