Gordon Bentley, Appellant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionMar 15, 1999
01986839 (E.E.O.C. Mar. 15, 1999)

01986839

03-15-1999

Gordon Bentley, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Gordon Bentley v. Department of the Navy

01986839

March 15, 1999

Gordon Bentley, )

Appellant, )

)

)

v. ) Appeal No. 01986839

) Agency No. DON 98-00024-006

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

______________________________)

DECISION

INTRODUCTION

Appellant filed an appeal with this Commission from a final agency

decision ("FAD") concerning his complaint of unlawful employment

discrimination in violation of Title VII, 42 U.S.C. 2000e et seq. The

final agency decision was dated August 24, 1998. The appeal was

postmarked September 17, 1998. Accordingly, the appeal is timely (see,

29 C.F.R. �1614.402(a)), and is accepted in accordance with EEOC Order

No. 960, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed all four

allegations of the complaint for failure to state a claim.

BACKGROUND

The record indicates that on March 2, 1998, appellant initiated contact

with an EEO Counselor regarding his complaint. Informal efforts to

resolve his concerns were unsuccessful. On May 20, 1998, appellant

filed a formal complaint, alleging that he was the victim of unlawful

employment discrimination on the basis of his race(white), physical

handicap, and reprisal when:

His supervisor questioned him on January 6, 1998 about his testimony

in an EEO case and about his retirement plans;

His supervisor denied his request for vacant office space on January 16,

1998 which was later given to a lower grade employee ;

On February 2, 1998 an agency attorney violated his right to privacy

by gaining accessing to his EEO records;

An administrative judge of the EEOC admitted into evidence his EEO

records;

On August 24, 1998, the agency issued a final decision dismissing all four

allegations of the appellant's complaint for failure to state a claim.

Specifically, the agency found that the appellant's supervisor's questions

regarding his EEO testimony and his retirement plans did not concern

a term or condition of employment. As such, the agency concluded,

the complaint failed to state a claim of discrimination.

The agency concluded that the appellant's supervisor's denial of his

request for certain vacant office space also did not concern a term or

condition of his employment and therefore, he failed to state a claim.

The agency decided that the appellant's claim that his right to privacy

was violated when his EEO records were obtained by an agency attorney

was not actionable under Title VII. Likewise, the agency determined that

an administrative judge's decision to admit those records into evidence

at another employee's hearing failed to state a claim because the agency

did not employ the administrative judge.

The appellant challenges the agency's dismissal of his complaint in this

appeal.

ANALYSIS AND FINDINGS

EEOC Regulations make it unlawful to subject an employee to retaliation

for opposing any practice made unlawful by title VII of the Civil

Rights Act.( 29 C.F.R.� 1614.101 ). To state a claim of reprisal, one

must allege involvement in the EEO process or the prior filing of an

EEO complaint 2) that the employer knew or should have known of the

employee's EEO involvement and 3) subsequent to the EEO involvement,

the employee suffered an adverse employment action.

We disagree with the agency 's dismissal of the allegation that the

appellant's supervisor questioning him about his testimony in another

employee's EEO case failed to state a claim in light of his second

allegation that just days later, his request for vacant office space

was denied in favor of a lower grade employee. Although the appellant

listed these allegations separately, the record indicates they are closely

related in time and involved the same supervisor. We view them together as

potentially having a nexus and stating a claim for reprisal. It is well

established that EEO charges are to be liberally construed to effectuate

the purposes of the discrimination statutes and the crucial role of the

private litigant in the statutory scheme. Sanchez v. Standard Brand,

Inc., 431 F.2d 455 (5th Cir. 1970); President v. Vance, 627 F.2d 353

(D.C. Cir.).

The Commission has the authority to "reframe charges and use available

materials and information to articulate lay complainant's charges."

Blue Bell Boots, Inc. v. EEOC, 418 F.2d 355, 357 (6th Cir 1969).

Rajpal v. United States Postal Service, EEOC Request No. 05920037

(May 19, 1992). Garrett v. United States Postal Service, EEOC Appeal

No. 01963466 (November 29, 1996).

Having said this, it is our view that the appellant's second allegation

regarding the denial of office space is enough to state a claim in and of

itself as it concerns a term and condition of employment. Consequently,

we find that the agency erred in dismissing these two allegations of

the complaint.

We agree with the agency's dismissal of the appellant's claim that

his right to privacy was violated when an agency attorney obtained

his EEO records and introduced them in another employee's EEO hearing.

The appellant's claim regarding violations of the Privacy Act do not state

a claim under Title VII which concerns only the rights of employees

to be free from discrimination in the workplace. See William Osborn

v. U.S.P.S. EEOC Request No. 05950654 February 15, 1996.

We also agree with the agency that the fourth allegation concerning the

actions of an EEOC administrative judge in admitting the appellant's EEO

records (or parts thereof) into evidence in another employee's hearing

fails to state a claim under Title VII. Under Title VII, the appellant

may only raise a claim concerning the actions of his own employer vis

a vis the terms conditions or privileges of his employment. See 42

U.S.C. 2000e-2. Furthermore, an employee may not use the EEO complaint

process to lodge a collateral attack on another proceeding. Kleinman

v. United States Postal Service, EEOC Request No. 05930106 (June 24,

1993).

Wilson v. Department of the Treasury, EEOC Request No. 05950472 (January

26, 1996) (challenge to agency's litigation tactics at EEO hearing fails

to state a claim in subsequent EEO case).

CONCLUSION

Accordingly, we REVERSE and REMAND the agency's dismissal of allegations

one and two of the complaint and AFFIRM the agency's dismissal of

allegations three and four. The agency is ordered to process the remanded

allegations as indicated 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. �1614.410.

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 15, 1999

____________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations