01994895
06-22-2000
Laura A. Jackson, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Laura A. Jackson, )
Complainant, )
)
v. )
) Appeal No. 01994895
Togo D. West, Jr., ) Agency Nos. 99-2466
Secretary, ) 99-2467
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On May 28, 1999, complainant filed a timely appeal with this Commission
from an agency decision pertaining to her complaints 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. and Section 501 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 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 and mental disability. Informal efforts to resolve
complainant's concerns were unsuccessful. Subsequently, complainant
filed two complaints on May 24, 1999. The agency framed the complaints
as follows:
Complaint No. 99-2466
On March 21, 1998, complainant was subjected to harassment because an
agency employee, EEO Counselor, provided testimony during an Merit Systems
Protection Board (MSPB) hearing which complainant believes was unfair,
discriminatory and slanderous.
Complaint No. 99-2467
On April 17, 1998, complainant was subjected to discriminatory harassment
when the Acting Chief of Patient Care Services sent an e-mail to the
nursing staff stating �I have been told by 05 that [ a named individual
identified as a �previous IRM employee�] is presenting himself as a
representative of OWCP and coming into work areas and asking questions.
He is notauthorized by OWCP. If this occurs, please refer him to human
resources. If he comes
in after hours do not give any information and inform police. I also
need reports of contact about this, if it comes up.�
On May 11, 1999, the agency issued a decision dismissing both complaints
for failure to state a claim.
On appeal, complainant argues that although �my issues and forums of
appeals may fall under various titles� they should fall under the EEOC.
Moreover, complainant contends that she was harmed by the e-mail incident
in that any potential witnesses to her OWCP claim were scared off.
With respect to Complaint No. 99-2466, complainant argues that this
complaint encompasses more than the EEO Counselor's MSPB testimony.
According to complainant, the Counselor was not fair or impartial in a
prior EEO complaint.
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).
The Commission determines that the agency properly dismissed Complaint
No. 99-2467 for failure to state a claim. We agree that complainant
has failed to show how the alleged e-mail caused her a harm or loss
regarding a term, condition or privilege of her employment. The e-mail
at issue names another employee, not complainant. Moreover, we find
complainant's argument, that the e-mail scared employees so much it
harmed her OWCP claim, to be speculative.
Regarding Complaint No. 99-2466 and the EEO Counselor's MSPB testimony,
we find the complaint constitutes a collateral attack on an MSPB
proceeding. The Commission has held that an employee cannot use the EEO
complaint process to lodge a collateral attack on another proceeding.
See Wills v. Department of Defense, EEOC Request No. 05970596 (July
30, 1998); Kleinman v. United States Postal Service, EEOC Request No.
05940585 (September 22, 1994); Lingad v. United States Postal Service,
EEOC Request No. 05930106 (June 25, 1993). The proper forum for
complainant to have raised her challenges to actions which occurred
during the MSPB hearing was at that proceeding itself.
Moreover, we note that regarding Case No. 99-2466, complainant argues
that the EEO Counselor's actions encompasses more than the Counselor's
MSPB testimony. Specifically, complainant asserts that the EEO Counselor
was not fair and impartial in regard to the processing of a previously
filed EEO complaint. To the extent that complainant argues that Case
No. 99-2466 is comprised in part of the issue of the EEO Counselor's
improper actions in a prior EEO complaint, this matters is appropriately
dismissed pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified
at 29 C.F.R. �1614.107(a)(8)).
We agree with the agency that the alleged incidents did not render
complainant an �aggrieved� employee. In addition, we find that the
complaints are not sufficient to state a claim of discriminatory
harassment. See Cobb v. Department of the Treasury, EEOC Request
No. 05970077 (March 13, 1997).
Accordingly, we find that the agency's decision dismissing the complaints
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 22, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date 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.