01a02404
06-07-2000
Kathleen M. Jensen, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Kathleen M. Jensen v. Department of the Navy
01A02404
June 7, 2000
Kathleen M. Jensen, )
Complainant, )
)
v. )
) Appeal No. 01A02404
Richard J. Danzig, ) Agency No. DON 99-41273-005
Secretary, )
Department of the Navy, )
Agency. )
____________________________________)
DECISION
On February 4, 2000, complainant filed a timely appeal with this
Commission from an agency's decision 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.<1> The
Commission accepts the appeal in accordance with 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. �1614.405).
Complainant contacted the EEO office regarding claims of discrimination
based on reprisal. Informal efforts to resolve complainant's concerns
were unsuccessful. Accordingly, on September 22, 1999, complainant
filed a formal complaint claiming she was discriminated against when:
1) On December 4, 1998, the EEO Counselor repeatedly advised her that
she would not be reimbursed for legal representation during the initial
counseling of a previous complaint; and,
2) On June 10, 1999, the agency representative attempted to intimidate
her by pursuing criminal charges for information she obtained in violation
of the Privacy Act.<2>
On January 14, 2000 the agency issued a decision dismissing the complaint.
Specifically, claim 1 was dismissed for untimely counselor contact.
The agency determined that complainant waited until July 8, 1999 to
contact the EEO Counselor, or 216 days after the alleged incident. Claim
2 was dismissed on the grounds that the matter alleged dissatisfaction
with the processing of a previously filed complaint. According to the
agency, the alleged incident occurred during the investigation of Case
No. DON 99-00210-001.
On appeal, complainant, through her attorney, argues that the agency
erroneously characterized claim 2. Rather than describing dissatisfaction
with the EEO process, complainant contends that claim 2 alleges harassment
by the agency in threatening a criminal investigation. In addition,
complainant asserts that the incident is part of a continuing violation,
as the same agency official was directly involved in both claims.
In response, the agency notes that complainant was advised that she
could raise her concerns, regarding processing of the prior complaint,
with the administrative judge handling that case. Moreover, the agency
asserts that complainant's continuing violation arguments are misplaced.
The agency argues that, although complainant has alleged reprisal,
the alleged incidents did not result in any adverse employment actions.
Accordingly, the agency maintains that its dismissal was proper.
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter cited as 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, .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).
Regarding claim 2, the Commission finds that the more appropriate ground
for dismissal is that the alleged incident fails to state a claim.
See Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and
hereinafter cited as 29 C.F.R. � 1614.107(a)(1)). We note that on
appeal, in an effort to dispel the contention that the claim concerns
the processing of the investigation, complainant's attorney states that
"the factual situation on which the complaint was based occurred during
a mediation conference...."
"Settlement negotiations, including any statements or proposals, are
to be treated as confidential and privileged to facilitate a candid
interchange to settle disputes informally." Harris v. Department of the
Navy, EEOC Request No. 05941002 (March 23, 1995). To allow complainant
to file a new complaint regarding the comments made by an agency official
during settlement negotiations of a previously filed EEO complaint would
defeat this purpose. See Millea v. Department of Veterans Affairs, EEOC
Request No. 05980235 (May 21, 1998); Montague v. Department of the Army,
EEOC Request No. 05920231 (May 2, 1992).
Similarly, confidentiality is considered one of the "Core Principles"
of Alternative Dispute Resolution (ADR). "Parties who know that their
ADR statements and information are kept confidential will feel free
to be frank and forthcoming during the proceeding, without fear that
such information may later be used against them." See Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
3-16, 3-17 and Appendix H (November 9, 1999). Therefore, we find that
complainant's claim regarding statements made by the counselor during
a mediation meeting (claim 2), fails to state a claim.
Moreover, the Commission finds that claim 1 also does not state a claim.
Complainant contends that she suffered discrimination when the EEO
Counselor repeatedly advised her that she would not be reimbursed for
legal fees incurred during the initial counseling of a prior complaint.
We do not find that the alleged incident resulted in a personal harm
or loss regarding a term, condition, or privilege of employment.
Complainant is not rendered an "aggrieved" employee by the Counselor's
remarks. Accordingly, claim 1 fails to state a claim. Because of our
disposition we do not consider whether claim 1 was properly dismissed
for untimely EEO Counselor contact.
Accordingly, the agency's dismissal of the complaint was proper and is
hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
June 7, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2We note that the agency's decision does not number the claims, but we
do so here for clarification.