Omer P.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionDec 12, 2017
0120172456 (E.E.O.C. Dec. 12, 2017)

0120172456

12-12-2017

Omer P.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency.


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Omer P.,1

Complainant,

v.

Richard V. Spencer,

Secretary,

Department of the Navy,

Agency.

Appeal No. 0120172456

Agency No. DON170007002479

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated July 12, 2017, dismissing his complaint of 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an EEO Assistant at the Agency's US Pacific Fleet Forces Command EEO Office facility in Brementon, Washington.

On June 15, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability (blindness) and reprisal for prior protected EEO activity when, on seven dates between April 10, 2017 and June 13, 2017, Agency representatives, EEO personnel, and an EEOC Administrative Judge sent email to Complainant's work email. According to Complainant, on March 23, 2017, during negotiations to settle two complaints filed by Complainant, Complainant's attorney informed one of the Agency representatives (the Labor and Employee Relations Specialist) that any email communication with Complainant related to his ongoing EEO complaints should go to his personal email for all correspondence.

The Agency issued a final decision dismissing the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The Agency reasoned that Complainant was alleging dissatisfaction with the processing of his pending EEO complaints. The Agency also found that it could not be liable for emails sent by individuals not employed by the Agency, including the Administrative Judge. This appeal followed.

Neither party submitted a brief on appeal.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. � 1614.107(a)(8) provides that an agency should dismiss a complaint that alleges dissatisfaction with the processing of a previously filed complaint.

Here, the complaint's sole issue regards the use of Complainant's work email address to communicate with him concerning previously filed EEO complaints. As such, we conclude that the Agency appropriately dismissed the complaint as failing to state an independent claim. Complainant should raise his concerns about the use of his work email address within the context of the complaints where the communication is occurring.

Additionally, although Complainant claims to have suffered damages in the form of emotional distress because of the use of his work email, the Commission has held that allegations that fail to state a claim cannot be converted into a viable claim merely because the complainant requests compensatory damages as a remedy. Ulanoff v. United States Postal Service, EEOC Request No. 05950396 (January 26, 1996); Shrader v. Department of Agriculture, EEOC Appeal No. 01961499 (November 3, 1997).

Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)

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 tends 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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

December 12, 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.

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