0120123176
09-19-2014
Jan B. Throndson, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
Jan B. Throndson,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120123176
Agency No. P-2012-0491
DECISION
On August 1, 2012, Complainant filed a timely appeal with this Commission from the Agency's decision dated July 23, 2012, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the reasons that follow, the Agency's final decision is AFFIRMED.
ISSUE PRESENTED
The issue presented is whether the Agency properly dismissed Complainant's complaint.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Maintenance Worker Supervisor, WS-8, at the Agency's Federal Medical Center in Rochester, Minnesota. On April 3, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Caucasian), sex (male), age (56), and in reprisal for prior protected EEO activity arising under Title VII and the ADEA when the Agency failed to conduct an investigation into his allegations that a union member was abusing official time, failed to hold staff accountable for their actions, and failed to investigate and discipline that same union member for providing false information with regard to a restraining order that she filed against him. He also alleged that the Agency failed to respond to his request for official time to deal with legal issues involving the restraining order that was falsely taken out against him by that union member.
The Agency dismissed Complainant's complaint on the basis that it failed to state a claim, citing 29 C.F.R. � 1614.107(a)(1). The Agency characterized Complainant's complaint as follows: management mishandled its internal investigation of allegations he referred (concerning a labor union official's travel and a coworker's court case seeking a restraining order against him). The Agency found that Complainant had not alleged a present harm to a term, condition or privilege of employment, as he had alleged that the Agency had mishandled an internal investigation, and therefore was not aggrieved. The Agency found that his complaint constituted an impermissible collateral attack on the internal investigatory proceedings of the Agency, and therefore failed to state a claim.1
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency had not enforced its Code of Conduct, with respect to the conflict between him and the union member against whom he made allegations of improper use of official time, and had not opened an internal investigation into the matter. He argued that if the Warden of the facility had conducted an investigation into his allegations, which would have substantiated them, he would not have had to hire an attorney and use annual leave in order to oppose the restraining order obtained by the co-worker in local court. The Agency submitted a statement in opposition to Complainant's appeal in which it urges the Commission to affirm its dismissal of Complainant's complaint. It argues that Complainant has not alleged an adverse employment action, or loss or harm to a term or condition of his employment for which there is a remedy.
ANALYSIS AND FINDINGS
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, 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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
We first note that the Agency's characterization of Complainant's complaint as a collateral attack on another Agency process was incorrect. When a complainant is not affirmatively challenging a determination by another adjudicatory body or the agency's actions within the other adjudicatory process, it is unlikely that the claim should be dismissed as a collateral attack. See Complainant v. Dep't of Justice, EEOC Appeal No. 0120122277 (September 20, 2012) (dismissal improper as a collateral attack on the internal affairs process because complainant was not challenging a determination by the Internal Affairs Division). Here, Complainant alleged that the Agency did not conduct an investigation into his allegations of wrongdoing on the part of other Agency employees. He was not claiming that he was subjected to an investigation or that events within the investigation itself were discriminatory.
We find, however, that the Agency's dismissal of Complainant's complaint should be affirmed. Complainant has not articulated any harm to a term, condition, or privilege of his employment. Although he disagreed with the Agency's handling of his allegations of impropriety, he has not shown that he suffered a personal harm to a term, condition, or privilege of his employment, when the Warden did not address his allegations in a manner with which he agreed. We find that the Agency's dismissal was proper under C.F.R. � 1614.107(a)(1).
CONCLUSION
Therefore, the Agency's dismissal of Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
September 19, 2014
Date
1 It also noted that Complainant's allegations of the mishandling of internal investigations procedures had been forwarded to the Agency's Office of Internal Affairs for their review and disposition.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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