01981995_r
04-14-1999
Minnie Noble, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Minnie Noble, )
Appellant, )
)
v. ) Appeal No. 01981995
) Agency No. 5X1L97010<1>
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
______________________________)
DECISION
On January 9, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by her on July 5, 1997,
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., and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. �621 et seq.<2> In her complaint,
appellant alleged that she was subjected to discrimination on the bases
of race (African-American), color (Black), national origin (Tennessee,
African-American), sex (female), and age (54) when:
On July 3, 1996, appellant received a fully successful rating from her
supervisor (S1);
On July 3, 1996, S1 denied appellant access to review her personnel
folder;
On September 25, 1996, the agency's Civilian Personnel Officer and
Employee Relations Specialist made false statements about appellant;
On August 22, 1996, the agency controverted appellant's Office of
Workers' Compensation Programs (OWCP) claim resulting in that claim
being denied; and
On November 20, 1996, the Union President fired appellant as a Union
Steward.
The agency accepted allegations (1) through (3) for investigation
and dismissed allegations (4) and (5) pursuant to EEOC Regulation
29 C.F.R. �1614.107(a), for failure to state a claim. Specifically,
the agency determined that Commission precedent has determined that
agencies are obligated to controvert OWCP claims, and, therefore, a
complainant is not considered aggrieved under the EEOC Regulations for
such agency action. With regard to allegation (5), the agency found that
this allegation concerned actions taken by the Union, and, therefore,
fell outside the purview of the discrimination complaint process with
the agency.
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).
In allegation (4), appellant alleged that she was subjected to
discrimination when the agency controverted her OWCP claim. The
Commission has held that it is an agency's obligation to controvert an
OWCP claim where there is a dispute as to the employee's entitlement.
Hall v. Department of Treasury, EEOC No. 01945595 (February 23,
1995). See also Lau v. National Credit Union Administration, EEOC Request
No. 05950037 (September 8, 1994) (an allegation that the agency presented
misleading or false information in response to a claim for Office of
Workers' Compensation Programs benefits must be raised in the workers'
compensation forum). Therefore, we find that allegation (4) was properly
dismissed for failure to state a claim.
With regard to allegation (5), the Commission has previously held
that a federal employee's complaint alleging discriminatory acts by a
union could not be brought under the Commission's Regulations as they
provide for complaints against only federal departments or agencies.
See Reardon v. United States Postal Service, EEOC Appeal No. 01860152
(November 19, 1985). Consequently, allegation (5) was properly dismissed
pursuant to 29 C.F.R. �1614.107(a).
Accordingly, the agency's decision to dismiss allegations (4) and (5)
is AFFIRMED for the reasons set forth herein.
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 (S0993)
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. 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:
April 14, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations1The Commission notes that Agency
No. 5X1L97002 was initially included as one of the complaints
before us in the instant appeal. However, as that complaint was
the subject of EEOC Appeal 01971547, it will not be addressed
herein.
2The record discloses that appellant initially sent the notice of
her appeal to the Commission on July 8, 1997. However, at that time
the appeal was returned to appellant because she mistakenly indicated
that no final decision had yet been reached on her case. Although the
Commission's August 8, 1997 correspondence instructed appellant to return
the appeal within 10 days of her receipt if she received the agency's
final decision, this letter was sent via regular mail, and, therefore,
we are unable to determine when appellant received it. Absent evidence
of the date of receipt, the Commission presumes that appellant's appeal
was returned within the time limit imposed in the Commission's August 8,
1997 correspondence. See, 29 C.F.R. �1614.402.