01987064
08-12-1999
Jim Shibel, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Jim Shibel v. Department of the Navy
01987064
August 12, 1999
Jim Shibel, )
Appellant, )
)
v. ) Appeal No. 01987064
) Agency Nos. DON 97-65888-028
) DON 98-65888-011
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
On September 24, 1998, appellant filed a timely appeal of an August 31,
1998 final agency decision which dismissed allegations a(1), a(2) and
e of his consolidated complaint for failure to state a claim.
In its final decision, the agency identified the dismissed allegations of
appellant's consolidated complaint as whether appellant was discriminated
against on the bases of national origin (Arabic), age (September 7, 1952),
disability (left knee surgery and degenerative discs), and in reprisal
(prior EEO activity) when:
a. appellant was forced to work in an abusive and hostile work
environment from January 1997 to September 1997 consisting of: (1) the
actions of his first and second line supervisors and the Competency
Manager regarding their actions concerning the processing his union
grievance number 294145; (2) repeated questioning by his first line
supervisor as to when appellant would be fit for full duty; and
e. in January 1998, his first line supervisor threatened and intimidated
witnesses sympathetic to appellant.
In dismissing allegations a(1), a(2) and e, the agency stated that
appellant failed to show how he was harmed by the processing of his union
grievance or by his witnesses being intimidated. The agency accepted
allegations a(3) to a(5) and b, c, d, f, and g for investigation.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim. 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).
Regarding allegation a(1), the EEO Counselor's Report and appellant's
consolidated complaint reveal that appellant alleged that he was harassed
by his first and second line supervisors and the Competency Manager
during the filing and processing of union grievance 29415. Specifically,
appellant alleged that he was denied immediate access to a union official
during the filing of his union grievance; denied information for the
processing of his grievance; denied a proper investigation of his union
grievance; and that the negotiated union agreement was not adhered to.
Upon review, the Commission finds that allegation a(1) fails to state a
claim since it constitutes a collateral attack on the grievance process
and involves actions inextricably intertwined with the processing and
administration of appellant's grievance. It is well settled that an
employee may not use the EEO complaint process to lodge a collateral
attack on the grievance process. Kleinman v. U.S. Postal Service, EEOC
Request No. 05940585 (September 22, 1994); Lingad v. U.S. Postal Service,
EEOC Request No. 05930106 (June 24, 1993). The Commission has recognized
very narrow exceptions to the general prohibition on collateral attacks.
See Story v. U.S. Postal Service, EEOC Request No. 05960314 (October 18,
1996); Ellis v. U.S. Postal Service, EEOC Request No. 05920011 (March
12, 1992) (discriminatory application of grievance process may state
a claim). Thus, for example, if an agency refused to accept grievances
from all persons within a protected class, such as race or disability,
that allegation would state a claim. However, allegation a(1) in the
case at hand does not fall within the narrow exceptions. Allegation a(1)
concerns the general administration of the grievance process and does not
relate to an employment policy or practice. Accordingly, the agency's
dismissal was proper.
Regarding allegation a(2), the Commission finds that the dismissal
was improper. A review of the EEO Counselor's Report, appellant's
consolidated complaint and the final agency decision itself reveals
that appellant clearly alleged that he was subjected to a hostile
work environment and continued harassment by his first line supervisor.
Appellant identified several incidents of alleged harassment. Allegation
a(2) was one of the incidents of harassment. Accordingly, while standing
alone, allegation a(2) appears not to state a claim, when considered
in conjunction with the other accepted allegations of appellant's
consolidated complaint and appellant's broad claim of a hostile work
environment, the allegation states a claim. See Meaney v. Department
of the Treasury, EEOC Request No. 05940169 (November 3, 1994).
Regarding allegation e, the Commission finds that it fails to state
a claim. In his complaint in Agency No. 98-65888-028 appellant alleged
that the agency used threats and intimidation against his witnesses
in his pending EEO complaints by forcing a witness to retire, verbally
harassing some witnesses and writing up witnesses for minor infractions.
However, appellant does not indicate that any of his witnesses failed to
participate in the EEO process as a result of the alleged intimidation
or, for example, that testimony provided by any witness was affected
by witness intimidation. See Andel v. U.S. Postal Service, EEOC Appeal
No. (October 17, 1995); cf. Marr v. Department of the Air Force, EEOC
Appeal No. 01941344 (June 27, 1996). Appellant, therefore, has not
established a direct and personal harm. To the extent that appellant
may be alleging that his complaints were improperly processed, such an
allegation does not state a claim. Under EEOC Management Directive
(MD)-110, Section 4-8 (October 22, 1992), appellant is required, and
appellant is herein advised, to bring such allegations to the attention
of agency EEO officials. Finally, the Commission notes that there
appears to be a question as to whether appellant has standing to raise
the allegations that witnesses were forced to retire, verbally harassed
or written up. Such actions allegedly taken against witnesses would
appear to give rise to causes of action by the witnesses. See Gentry
v. Department of the Air Force, EEOC Appeal No. 01956913 (1997).
Consistent with our discussion herein, the agency's dismissal of
allegations a(1) and e is AFFIRMED. The agency's dismissal of allegation
a(2) is REVERSED and allegation a(2) is REMANDED to the agency for
further processing.
ORDER
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:
August 12, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations