01982889_r
05-27-1999
Joan R. Stephens, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Joan R. Stephens, )
Appellant, )
)
v. ) Appeal No. 01982889
) Agency No. 5FOJ98001
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
______________________________)
DECISION
On March 9, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) dated February 4, 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 on the bases of sex (female) and in reprisal for prior
EEO activity when:
Appellant was required to accomplish time and attendance duties and
make system inputs and have a supervisor check her inputs, before the
disk was taken to Civilian Pay technicians to be certain that appellant
did not make erroneous or fraudulent entries;
The agency would not allow any codes to be inputted into the civilian
time and attendance system to account for official EEO time;
The Civilian Personnel Officer called the Lodging Officer to advise
him to keep records of the time appellant spent with her EEO Counselor;
Appellant received time and attendance sheets that had been marked
�Corrected� but there was not a single code identified as corrected;
Appellant was accused of �inputting into the system unauthorized changes
to a time and attendance sheet that caused [an employee] to be over
paid approximately $200;�
Appellant received a memo dated December 11, 1997, that stated �My
suggestion is to continue to find a solution for 90 days from today.
At that time, if no solution is found, I may be forced to consider
placing [appellant] on a regular Mon-Fri schedule, eight hour shift.�
The December 11, 1997 memo also stated that appellant was �posing a
financial impact on the lodging fund;�
When appellant stated �this duty is not in the CORE document,� her
supervisor asked whether �[the agency was] going to have [appellant's]
position description reclassified� and whether �[the agency was] going
to have to tell Civilian Personnel that [appellant] was a misplaced
employee who was unable to accomplish the job;�
Appellant received a letter from the Commander which stated, �[f]ollowing
this procedure will ensure that your absences from work while pursuing
EEO processes are properly approved and documented as official (duty)
time. It will ensure there is no misunderstanding concerning the
purpose and amount of time you are away from your work site;�
Appellant was placed in the Lodging office, where management intended
to get rid of her and to make her regret not accepting the agency's two
offers of early retirement with a 10% reduction penalty when appellant
was told she had no RIF rights;
In violation of EEOC Regulation 29 C.F.R. �1614.404(b), appellant was
not provided with a copy of an agency letter to administratively drop
case number 5F1C96004;
On December 31, 1997, the agency violated 29 C.F.R. �1614.104(g) when
appellant received a letter from the Chief EEO Counselor stating, �I must
anticipate that you failed to receive a blank DD Form 2655 during your
final interview. . .,� thus indicating that appellant's name had been
revealed without her permission as having filed an informal complaint;
Appellant suffered a continuing conspiracy by top commanders of the
Air Force Base through their representatives known as �the management
of Little Rock Air Force Base;�
Appellant was denied due process of law in 1987-1988, when the agency
refused to advise appellant that the agency had dismissed a portion of
appellant's complaint that identified her alleged selection of �GS-1170
classification� and refused to advise appellant of her rights to appeal
this dismissal as required by EEOC Regulation 29 C.F.R. �1613, by AFR
40-1613, and by the United States Constitution;
In the November 3, 1997 staff meeting, appellant's manager announced
that appellant was the only employee present that had not previously
been a NAF employee, and when appellant asked what that meant for her,
her supervisor said that appellant would become a NAF employee in April
1998, if the agency stayed on target; and
Appellant was informed that the Chief of Equal Employment Opportunity
was not aware of any conflict in appellant talking to him regarding any
EEO matter, blocked his calendar starting at 1330, November 17, 1997,
to discuss her complaint, and advised appellant that an observer from
AW/JA would be present.
The agency accepted allegations (1), (3), (4), and (5). The
agency dismissed allegation (2) pursuant to EEOC Regulation 29
C.F.R. �1614.107(a) for stating the same claim pending with the
agency, dismissed allegations (6), (7), and (8) pursuant to EEOC
Regulation 29 C.F.R. �1614.107(b) for failure to discuss the matters
with an EEO Counselor, dismissed allegation (9) pursuant to EEOC
Regulation 29 C.F.R. �1614.107(b) for untimely counselor contact,
dismissed allegations (10), (11), (12), (13), and (15) pursuant to
EEOC Regulation 29 C.F.R. �1614.107(a) for failure to state a claim, and
dismissed allegation (14) for raising a matter in response to the agency's
definition of a complaint that was not included in the formal complaint.
Alternatively, allegation (13) was dismissed pursuant to EEOC Regulation
29 C.F.R. �1614.107(a) for stating the same claim pending in EEOC Appeal
No. 01980936. With regard to allegation (9), the agency found that the
incident occurred in February 1995, when appellant began working at her
new site, but that appellant did not contact a counselor until 1997.
On appeal, appellant claims that allegation (2) could not be part of
another case, because the incident did not occur until September or
October 1997, after she filed her prior complaint.<1> Appellant argues
that she spoke with her EEO Counselor in her office on December 18,
1997, at 3:30 p.m. about allegations (6), (7), and (8). With regard to
allegation (9), appellant argues that she was not aware of management's
intent to get rid of her the day that she took her new position.
Appellant contends that she has suffered from a continuing violation,
and first became aware of management's intent to get rid of her when
she received an unsatisfactory performance evaluation on August 16, 1995.
In response, the agency provides a signed statement from appellant's
EEO Counselor in which he denied discussing the issues in allegations
(6),(7), or (8) with appellant. The agency notes that the prior complaint
in which allegation (2) is purportedly pending is 5F1C96004, which is now
pending reconsideration by the Commission in EEOC Request No. 05980360.
Further, the agency notes that appellant's claim in allegation (9) is
untimely even if she did not first become aware of management's intent
until August 16, 1995, and argues that allegation (10) fails to state
a claim because the letter that the agency failed to send to appellant
merely transmitted a copy of appellant's United States District Court
filing (Stephens v. Department of Air Force, Civil Action No. LR-C-95-815,
U.S. Dist. Ct. (E.D. Ark. March 31, 1997)), to dismiss the underlying
agency case. The agency attaches a copy of the District Court decision.
Appellant submits a copy of a letter dated November 3, 1997, that she
sent to the Chief EEO Counselor to request counseling. The letter
states that because appellant filed prior cases alleging that the Chief
EEO Counselor was discriminating against her, a conflict of interest
barred him from taking part in the processing of appellant's complaint.
The Chief EEO Counselor disputes the conflict of interest, and establishes
a time to meet with appellant in his response dated November 6, 1997.
Further, we note that one of appellant's prior complaints, EEOC Appeal
No. 01980936 (Oct. 23, 1998), includes an allegation that �the agency's
Chief EEO Counselor subjected appellant to mental harassment.�
A review of prior decisions reveals that a March 17, 1997 Mediation
Agreement states, in relevant part, �complainant's Time and Attendance
record will be annotated by her supervisor whenever she is engaged
in an official capacity in the administrative processing of an
EEO complaint. . . .� The District Court decision (Civil Action
No. LR-C-95-815) and the FADs of Agency Number 5F1C96004 (dated September
4, 1996 and February 20, 1998) related to similar matters.
A review of the record also reveals that in her informal complaint,
appellant mentioned that her CORE job description did not include
inputting time and attendance records, and that appellant asked her
supervisor to be relieved of those duties. In the informal complaint,
appellant also complained of having the time she spent with EEO Counselors
tracked by other employees per the orders of supervisors.
ANALYSIS AND FINDINGS
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. It
has long been established that "identical" does not mean "similar."
The Commission has consistently held that in order for a complaint to be
dismissed as identical, the elements of the complaint must be identical to
the elements of the prior complaint in time, place, incident, and parties.
See Jackson v. USPS, EEOC Appeal No. 01955890 (April 5, 1996).
The Commission finds that allegation (2) was improperly dismissed.
Allegation (2) is not identical to any matter raised in Agency
Number 5F1C96004, the March 17, 1997 Mediation Agreement, nor
Stephens v. Department of Air Force, Civil Action No. LR-C-95-815,
U.S. Dist. Ct. (E.D. Ark. March 31, 1997). The prior decisions
all involved, inter alia, the type of leave charged for appellant's
absences, and the method that supervisors would use to track her EEO
time for absences. These prior decisions do not address the agency's
refusal to allow any codes to be logged in the system for EEO time,
as raised in allegation (2). Accordingly, the agency's decision to
dismiss allegation (2) is REVERSED.
EEOC Regulation 29 C.F.R. �1614.107(b) states, in pertinent part, that
an agency shall dismiss a complaint or portion thereof which raises a
matter that has not been brought to the attention of an EEO Counselor,
and is not like or related to a matter on which the complainant has
received counseling. A later allegation or complaint is "like or related"
to the original complaint if the later allegation or complaint adds
to or clarifies the original complaint and could have reasonably been
expected to grow out of the original complaint during the investigation.
See Calhoun v. United States Postal Service, EEOC Request No. 05891068
(March 8, 1990); Webber v. Department of Health and Human Services,
EEOC Appeal No. 01900902 (February 28, 1990).
The Commission finds that allegation (7) was brought to the attention
of appellant's EEO Counselor. Appellant mentioned her discussions
with supervisors over requests to be relieved from inputting time
and attendance data because that task was not included in her CORE
documented duties.
Further, the Commission finds that allegation (8) is like or related to
a matter for which appellant received counseling. Appellant's informal
complaint also noted that appellant's supervisors were monitoring her
time spent with EEO Counselors. The Base Commander's letter outlining
the procedure for appellant to record her EEO activity is clearly like or
related to the implementation of that system. Additionally, allegation
(8) is reasonably related to allegation (3), which the agency accepted
for investigation. Accordingly, the agency's dismissal of allegations
(7) and (8) is REVERSED.
Allegation (6), however, which involves criticism of appellant's job
performance and problems with her compressed work schedule, was not
raised, nor is it like or related to matters which were raised in
counseling. Accordingly, the agency's decision to dismiss allegation
(6) is AFFIRMED.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Ball v. USPS, EEOC Request
No. 05880247 (July 6, 1988). Thus, the time limitation can be triggered
before all the facts that support a charge of discrimination have become
apparent, but not until a complainant reasonably suspects discrimination.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The Commission has held that the time requirements for initiating EEO
counseling could be waived as to certain allegations within a complaint
when the complainant alleged a continuing violation; that is, a series
of related discriminatory acts, one of which fell within the time period
for contacting an EEO Counselor. See McGivern v. U.S. Postal Service,
EEOC Request No. 05901150 (December 28, 1990).
A determination of whether a series of discrete acts constitutes
a continuing violation depends on the interrelatedness of the past
and present acts. Berry v. Board of Supervisors, 715 F.2d 971, 981
(5th Cir. 1983), cert. denied, 479 U.S. 868 (1986). It is necessary to
determine whether the acts are interrelated by a common nexus or theme.
See Vissing v. Nuclear Regulatory Commission, EEOC Request No. 05890308
(June 13, 1989); Verkennes v. Department of Defense, EEOC Request
No. 05900700 (September 21, 1990); Maldonado v. Department of the
Interior, EEOC Request No. 05900937 (October 31, 1990). Should such
a nexus exist, appellant will have established a continuing violation
and the agency would be obligated to "overlook the untimeliness of the
complaint with respect to some of the acts" challenged by appellant.
Scott v. Claytor, 469 F. Supp. 22, 26 (D.D.C. 1978).
Relevant to the determination are whether the acts were recurring or were
more in the nature of isolated employment decisions; whether an untimely
discrete act had the degree of permanence which should have triggered an
employee's awareness and duty to assert his or her rights; and whether the
same agency officials were involved. Woljan v. Environmental Protection
Agency, EEOC Request No. 05950361 (October 5, 1995).
Further, it is important, in determining whether a claim for a continuing
violation is stated, to consider whether an appellant had prior knowledge
or suspicion of discrimination and the effect of this knowledge.
Jackson v. Department of the Air Force, EEOC Request No. 05950780 (June
27, 1997); see Sabree v. United Brotherhood of Carpenters and Joiners
Local No. 33, 921 F.2d 396 (1st Cir. 1990) (plaintiff who believed he
had been subjected to discrimination had an obligation to file promptly
with the EEOC or lose his claim, as distinguished from the situation
where a plaintiff is unable to appreciate that he is being discriminated
against until he has lived through a series of acts and is thereby able
to perceive an overall discriminatory pattern).
After a thorough review of the record, the Commission finds that
appellant's initial EEO Counselor contact occurred on November 3, 1997,
the date of her letter to the Chief EEO Counselor. Appellant claimed
that she did not reasonably suspect discrimination until August 16,
1995. Appellant alleges that a continuing violation should excuse
the untimeliness of allegation (9), but appellant had an obligation to
promptly file after discovering management's intent on August 16, 1995.
See Sabree v. United Brotherhood of Carpenters and Joiners Local No. 33,
921 F.2d 396 (1st Cir. 1990). Therefore, the agency�s dismissal of
allegation (9) for untimely counselor contact is AFFIRMED.
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 finds that allegation (12) was properly dismissed.
Appellant failed to establish any harm or loss to a term, condition or
privilege of employment. Accordingly, the agency's decision to dismiss
allegation (12) for failure to state a claim is AFFIRMED.
The incidents identified in allegations (10) and (13) both concern
alleged improprieties in the agency's processing of prior EEO complaints
appellant filed. Specifically, appellant alleges that she did not
receive various dismissal letters and appeal rights. 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 Appeal No. 05940579 (September 22, 1994); Story v. U.S. Postal
Service, EEOC Appeal No. 01965883 (March 13, 1997). Furthermore, 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
allegations (10) and (13) pursuant to 29 C.F.R. �1614.107(a).<2>
In allegation (11), appellant complains of improper processing of the
present complaint. EEO Management Directive 110 requires only that
the agency refer the complainant to the agency official responsible
for the quality of complaint processing, and that those individuals
earnestly attempt to resolve dissatisfaction with the complaints
process as early as possible. See EEO Management Directive 110 (4-8).
EEO Management Directive 110 provides that the agency must process
only those complaints in which the individual alleges that he or she
was treated differently, or is being adversely affected by a policy or
practice having a discriminatory effect on the processing of his or her
complaint. We note that appellant failed to allege that the treatment
afforded her was different than that afforded others. Appellant also
failed to identify a policy or practice having a discriminatory effect
on the processing of her complaint. Consequently, the agency's decision
to dismiss allegation (11) is AFFIRMED because the matter fails to state
a separate processable claim.<3>
With regard to allegation (15), we note that appellant has filed a prior
complaint naming the Chief EEO Counselor as responsible for discrimination
against her. Clearly, it is a conflict of interest on its face for an
EEO investigator or a complaints manager to be responsible for processing
a complaint in which they have been charged with participating in the
discrimination against the complainant. Smith v. U.S. Postal Service,
EEOC Request No. 05920962 (September 7, 1993). Likewise, it is a
conflict of interest for a complaints manager to be responsible for
processing the complaint of someone who has previously filed against him.
Consequently, while allegation (15) does not state a separate allegation
to be processed, we find that the agency should insure that the Chief
EEO Counselor is not involved in the further processing of the present
complaint or any future complaints filed by appellant.
Regarding allegation (14), appellant disputed the agency's definition
of her formal complaint. Based on a review of appellant's formal
complaint dated January 8, 1998, the Commission finds that the matter
raised in allegation (14) was not mentioned in the formal complaint, and
therefore the agency's decision to dismiss the allegation is AFFIRMED.
If appellant wishes to pursue these allegations, she should contact an
EEO Counselor to address the matter.
CONCLUSION
Accordingly the agency's dismissal of allegations (6), (9), (10), (11),
(12), (13), (14), and (15) is AFFIRMED. The agency's dismissal of
allegations (2), (7), and (8), however, is REVERSED and the allegations
are REMANDED for further processing in accordance with this decision.
ORDER
The agency is ORDERED to take the following actions:
insure that the Chief EEO Counselor, whom appellant has named as a
responsible agency official in a prior discrimination complaint, is
not involved in the processing or other handling of any of appellant's
present or future EEO matters;
Further, the agency is ORDERED to process allegations (2), (7), and (8)
in accordance with 29 C.F.R. �1614.108. The agency shall acknowledge to
the appellant that it has received the remanded allegations 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 27, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1Appellant does note that it could
be part of the case if it was considered part of the continuing
harassment allegation.
2Since we are affirming the agency's dismissal of allegation (13)
on the grounds of failure to state a claim, we will not address the
agency's alternative grounds for dismissal, i.e., that the same matter
is addressed in another complaint.
3Furthermore, we note that at this point in the processing of appellant's
present complaint, the EEO Counselor's failure to maintain appellant's
anonymity, while improper, now constitutes harmless error since
appellant's complaint has reached the formal stage and anonymity is
no longer available. The agency is hereby advised, however, to insure
that its EEO officials are aware of the regulations and the EEO rights
of its employees.