Minnie Noble, Appellant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionApr 14, 1999
01981995_r (E.E.O.C. Apr. 14, 1999)

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.