01982616
03-05-1999
Alan Lipari, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Contract Audit Agency) Agency.
Alan Lipari, )
Appellant, )
)
v. ) Appeal No. 01982616
) Agency No. N9710
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Contract Audit Agency)
Agency. )
______________________________)
DECISION
Based on a review of the record, we find that the agency properly
dismissed appellant's complaint, pursuant to EEOC Regulation 29
C.F.R. �1614.107(a), for failure to state a claim. Appellant alleged
that he was discriminated against on the basis of reprisal (prior EEO
activity), when a supervisory level employee filed an EEO complaint
against the agency naming him as the discriminating party in the matter.
The agency accepted five other allegations for investigation, and remanded
two additional allegations for further development.
On appeal, the appellant contends that the Resident Audit Manager filed
the EEO complaint solely to harass him for filing a prior complaint,
and to pressure him to withdrawn his current complaint.
He states that it is nothing more than a direct personal attack and
that it is part of an on-going pattern of harassment intended to create
a hostile work environment. He further contends that this allegation
was not addressed by the EEO Counselor.
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 experiences 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 only proper questions in determining whether an allegation is
within the purview of the EEO process are: (1) whether the complainant
is an aggrieved employee; and, (2) whether he has alleged employment
discrimination covered by the EEO statutes. See Hobson v. Department
of the Navy, EEOC Request No. 05891133 (March 2, 1990).
In this case, the appellant has not alleged a type of employment
discrimination which is a protected basis under the applicable EEO
statutes. Being named as the discriminating party in the EEO complaint of
another employee does not state a claim upon which relief can be granted
under the discrimination statutes and Commission regulations. A complaint
of discrimination is filed, not against an individual agency employee,
but against the head of the agency. To recognize such an allegation as
stating a claim would completely undermine the EEO process, creating an
unworkable system in which every EEO complaint could have one or more
companion cases raised by agency employees named in the complaints.
See du Buy v. Department of Health and Human Services, EEOC Request
No. 05940577 (October 27, 1994). Moreover, to allow the processing of
a complaint by an employee wherein the employee challenges the filing of
another EEO complaint by a coworker or other agency employee would have
a chilling effect on the filing of EEO complaints by aggrieved persons.
See Blinco v. Department of the Treasury, EEOC Request No. 05940194
(May 25, 1994).
Because the instant allegation cannot, on its face, state a claim,
the related allegations of harassment and EEO Counselor failure to
address the claim, are not properly before the Commission with respect
to this decision. However, the appellant is advised that he may raise
these allegations as background evidence within the context of his
pending complaint.
Accordingly, we AFFRIM the agency's decision dismissing the appellant's
allegation in this matter.
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.
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.F.R.).
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:
March 5, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations