0120171810
06-09-2017
Joette R.,1 Complainant, v. Sean J. Stackley, Acting Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Joette R.,1
Complainant,
v.
Sean J. Stackley,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 0120171810
Agency No. DON174523A01040
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated March 14, 2017, dismissing her complaint alleging 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.
BACKGROUND
At the time of events giving rise to these complaints, Complainant was a former employee of the Agency's Puget Sound Naval Shipyard facility in Bremerton, Washington. She had filed earlier EEO complaints.
On February 27, 2017, December 22, 2016, January 19, 2017, Complainant filed the same formal EEO complaint alleging that the Agency subjected her to unlawful retaliation.2 In her complaint, she alleged that: (1) on January 5, 2017, the Agency seized her "property" (a previously filed EEO complaint identified as DON Docket No. 16-453A-03050) and sent it to be processed without acknowledging her request to put it in abeyance until a valid investigation was completed; (2) on January 5, 2017, Complainant asked for clarification of who was the rightful "owner" of DON Docket No. 16-4523A-02935; (3) on unspecified dates, numerous named individuals in the Agency and at the EEOC authorized unknown contractors access to information gathered from Complainant and an order was given to share information within the Central Intelligence Area; and (4) on an unspecified date, an identified individual violated EEOC's Management Directive-110 and impersonated an EEO Counselor when he processed numerous complaints submitted by Complainant.
Complainant submitted 41 separate complaint forms. The issues raised in each of these additional complaint forms were identical, with the exception that in each a different official was named as being responsible for the unlawful retaliation. Thus, a total of 41 formal complaint forms were consolidated by the Agency into one complaint which was dismissed, pursuant to 29 C.F.R. � 1614.107(a), for failure to state a claim, for expressing dissatisfaction with the processing of a previously filed complaint, untimeliness, and for misuse of the EEO process.
The instant appeal followed. In her appeal, Complainant continues to express her dissatisfaction with the way in which her prior EEO complaints were processed and with the EEO complaint process in general.
ANALYSIS AND FINDINGS
As an initial matter, we find the Agency properly consolidated all of the complaint forms into one complaint for processing as they all raise the same claims, albeit with different individuals named as the alleged discriminating official. See 29 C.F.R. � 1614.606.
"Spin Off" Complaints
29 C.F.R. � 1614.107(a)(8) provides that the Agency shall dismiss a complaint that alleges dissatisfaction with the processing of a previously filed complaint. These types of complaints are commonly referred to as "spin off" complaints, and they do not state an independent claim.
To the extent that Complainant is alleging in the current complaints that her previous EEO complaints were improperly processed by both Agency EEO officials and EEOC officials,3 we agree with the Agency that they should be viewed as spin-off complaints subject to dismissal under 29 C.F.R. � 1614.107(a)(8). Complainant should raise any claims regarding the processing of a complaint while that complaint is being processed, not in a new complaint. According to EEOC's Management Directive (MD-110) at 9-16, such claims should be processed as part of the original complaint. If a final Agency decision is issued on a complaint where a complainant has an issue with its processing, he or she may also raise her concerns in an appeal.
Failure 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, .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). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
Here, we concur with the Agency that Complainant failed to alleged facts, which if proven true and considered together, would establish that she suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. In her complaint, Complainant has not provided any explanation of how she was harmed or when. We also note that, to the extent that an EEOC official is named as one of the alleged discriminating officials, the Agency cannot be held liable for the actions of that official. The complaint, as written, without more, simply does not state a viable claim of discrimination or unlawful retaliation.
Abuse of Process
Section 1614.107(a)(9) of 29 C.F.R. is the appropriate provision under which an agency may dismiss a complaint on the extraordinary grounds of abuse of process. Abuse of process is defined as a clear pattern of misuse of the process for ends other than that which it was designed to accomplish. See Buren v. U.S. Postal Service, EEOC Request No. 05850299 (Nov. 18, 1985); Kleinman v. U.S. Postal Service, EEOC Appeal No. 01943637 (September 22, 1994); Sessoms v. U.S. Postal Service, EEOC Appeal No. 01973440 (June 11, 1998). The Commission has a strong policy in favor of preserving a complainant's EEO rights whenever possible. Therefore, dismissals under Section 1614.107(a)(9) must be taken only in the rare cases where there is a clear misuse or abuse of the administrative process.
In the instant case, we place Complainant and her representative on notice that the actions here are bordering on abuse of the EEO complaint process. In less than a month, she filed 91 formal complaint forms (although they were consolidated into four complaints) which were addressed in EEOC Appeal Nos. 0120171421-1424. In the instant complaint, she filed another 41 complaint forms. Further, we note that it involved complaints about the processing of her prior EEO complaints. To that extent, it is emphasized to Complainant and her representative that such issues must be raised during the processing of the underlying complaint, and do not state an independent claim. Due to what appears to have been a misunderstanding of the process, at this juncture, we decline to impose sanctions on Complainant for abuse of process. However, we are concerned that Complainant stated that she will continue to file additional complaints if the Agency continued to process her complaints under one docket number. We caution Complainant that abuse of process is a ground upon which complaints can be dismissed.
Accordingly, the Agency's final decision dismissing Complainant's complaints is AFFIRMED.4
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
June 9, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Complainant also filed EEO complaints on December 16, 2016, January 19, 2017 (2 formal complaints), and January 5, 2017. The Agency dismissed these appeals and Complainant appealed to the Commission. In Appeal Nos. 0120171421-1424 (May 12, 2017) we affirmed the dismissals.
3 There appears to be confusion by Complainant about the Agency's EEO office. Those employees are employed by the Agency, not the EEOC. However, when a complaint is in the hearing process, it is then under the jurisdiction of an EEOC Administrative Judge. When a final Agency decision is issued, whether or not there had been a hearing, a complainant may then appeal to the EEOC's Office of Federal Operations and raise any concerns about the hearing process, as well as the Agency's processing of the complaint.
4 Because we are affirming the dismissal of the complaints as spin-offs and for failure to state a claim, and have warned Complainant about abuse of process, we do not need to address the Agency's alternative grounds for dismissal concerning timeliness.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120171810
5
0120171810