01982395
03-19-1999
Deborah Biesbrock, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy Agency.
Deborah Biesbrock v. Department of the Navy
01982395
March 19, 1999
Deborah Biesbrock, )
Appellant, )
)
v. ) Appeal No. 01982395
) Agency No. 9865923017
Richard J. Danzig, )
Secretary, )
Department of the Navy )
Agency. )
______________________________)
DECISION
I. INTRODUCTION
On February 5, 1998, appellant filed the instant appeal from the
agency's January 15, 1998 decision dismissing appellant's complaint.
The agency acted pursuant to 29 C.F.R. � 1614.107(a), on the ground that
the complaint failed to state a claim.
II. ISSUE
Whether the agency erred in dismissing appellant's complaint.
III. BACKGROUND
In early 1997, appellant submitted to the agency four separate merit
promotion applications. The applications were rejected on the ground
that some of the claims appellant made regarding her federal job
experience were inconsistent with information in appellant's official
personnel folder. Appellant submitted additional information in an
effort to substantiate her claims.<1> The agency found the supplemental
information to be inadequate and informed appellant that if she submitted
any future applications reflecting the same questioned job experience
those applications would be regarded as "falsified."
In mid-1997, appellant submitted to the agency another merit promotion
application, containing substantially the same information the agency
had earlier labeled "falsified." Again, the agency informed appellant
that she would not be selected for the position because her application
contained unsubstantiated claims of job experience.
In late 1997, appellant submitted yet another application containing the
same allegedly falsified information to the agency. On November 14,
1997, an agency staffing specialist wrote to appellant stating that
appellant's latest application would be rejected and also informing
appellant that appellant's department head had been notified of the
"continued submission of falsified applications so that he may take
appropriate disciplinary action."
In response, appellant initiated contact with an EEO counselor
and ultimately filed a formal complaint alleging that she had been
discriminated against on the basis of reprisal (prior EEO activity) when
she was issued the November 14, 1997 letter and when her department head
was notified of the alleged falsification. The forms of relief appellant
requested included, inter alia, "immediate cessation of the harassment."
The agency dismissed appellant's complaint for failure to state a claim
on the theory that the November 14, 1997 letter was a mere expression of
opinion about appellant's qualifications and "did not harm" appellant or
"change a term or condition" of appellant's employment.
IV. ANALYSIS AND FINDINGS
The agency argues that appellant is not an aggrieved person because "a
comment, unaccompanied by concrete action, is not a direct and personal
deprivation sufficient to render an individual aggrieved within the
meaning of 29 C.F.R. � 1614.103." The agency's position is not well
taken. The November 14, 1997 letter constituted substantially more than
a "comment." It was an official written communication strongly critical
of appellant's behavior.
The Commission has repeatedly held that an employee who is the subject
of a critical written evaluation can state a claim of discrimination,
even if the agency has taken no action on the basis of the writing.
Meredith v. United States Postal Service, EEOC Request No. 05890714
(September 21, 1989) (a negative recommendation for a detail sufficiently
aggrieved the complainant even without the showing that the employee
did not receive the detail as a result of the negative recommendation);
Simeone v. Navy, EEOC Request No. 05930973 (January 25, 1994) (the "mere
existence" of an allegedly discriminatory counseling memorandum in the
official personnel files of an employee constitutes a sufficient injury
to aggrieve the employee.).
In the instant case, the November 14, 1997 letter, which accuses appellant
of "falsification" and bars her from submitting future applications,
is highly critical of appellant. Indeed, under certain circumstances,
the statements contained in the letter could be regarded as defamatory.
If, as appellant alleges, the letter contains untruths,<2> she certainly
has been aggrieved by it.
In addition, the threat of future disciplinary action contained in the
November 14, 1997 letter constitutes present harm to appellant sufficient
to render her aggrieved. Where, as in this case, the complainant alleges
that a proposal to take future disciplinary action was made for the
purpose of harassment,<3> the Commission has found that the threat itself
"has already affected the complainant," and therefore that dismissal of
the complaint was improper. Fu v. Federal Deposit Insurance Corporation,
EEOC Request No. 05960268 (July 8, 1996) citing Analysis of Section 107(e)
of 29 C.F.R. Part 1614, 57 Fed. Reg. at 12,643 (April 10, 1992).
V. CONCLUSION
For the foregoing reasons, we find that appellant's complaint states a
claim.
Accordingly, we VACATE the final agency decision and REMAND the allegation
to the agency in accordance with this decision and the ORDER below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. � 1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
of the appropriate rights within one hundred fifty (150) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 19848, Washington,
D.C. 20036. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the appellant.
If the agency does not comply with the Commission's order, the appellant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The appellant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. ��1614.408,
1614.409, and 1614.503(g). Alternatively, the appellant has the right to
file a civil action on the underlying complaint in accordance with the
paragraph below entitled "Right to File A Civil Action." 29 C.F.R. ��
1614.408 and 1614.409. A civil action for enforcement or a civil action
on the underlying complaint is subject to the deadline stated in 42
U.S.C. � 2000e-16(c) (Supp. V 1993). If the appellant files a civil
action, the administrative processing of the complaint, including any
petition for enforcement, will be terminated. See 29 C.F.R. � 1614.10.
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 (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. 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:
March 19, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 This supplemental information included documents showing that appellant
had previously filed an EEO complaint against the agency.
2 The EEO Counselor's report reflects appellant's claim that the
November 14, 1997 letter contains "false and/or misleading statements
and conclusions."
3 The complaint is less than artful in setting forth appellant's
harassment claim. The term "harassment" is used only in the complaint's
relief section. However, the record shows that on several occasions,
appellant's job applications had been rejected as falsified. This is
sufficient to make out a claim based on a pattern of harassment.