0120170959
04-05-2018
Cornell S.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Cornell S.,1
Complainant,
v.
Sonny Perdue,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 0120170959
Agency No. FS201600945
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision (FAD I) dated December 12, 2016, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Engineering Technician, GS-0802-09 at an unspecified Agency facility in Asheville, North Carolina. On October 22, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of sex (male), disability (arterial fibrillation), age (52), and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. On January 25, 2015, management failed to reasonably accommodate Complainant when his request to ride with a coworker during work assignments was denied;
2. On March 10, 2016, management issued Complainant a letter that instructed him to reinstate his Government driver's license no later than March 24, 2016, or be subject to administrative review and actions;
3. During 2007, management reassigned Complainant from a Cartographer, GS-1370-11 position with Ecosystems and Planning, to an Engineering Technician, GS-0802-09 position;
4. On an unspecified date, management denied Complainant's "Step 1 Grievance" which Complainant filed after receiving a denial of his initial reasonable accommodation request; and
5. During an unspecified time-frame, management subjected Complainant to various acts of harassment, including but not limited to his being misled and bullied when given work assignments in an increasing workload, held to different standards, and performing work assignments under unsafe conditions.
The Agency dismissed claims 1, 2, and 5 for stating the same claims as claims that were either pending or had been decided by the agency or the EEOC. The Agency denied claim 3 for untimely EEO Counselor contact, and denied claim 4 on the grounds that Complainant had first elected to file a grievance on the matter.
ANALYSIS AND FINDINGS
In its FAD, the Agency found that claims 1, 2, and 5 had been raised in prior EEO complaints. EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides for the dismissal of a complaint that states the same claim that is pending before or has been decided by the Commission or the Agency. To be dismissed as the "same claim," the present formal complaint and prior complaint must have involved identical matters. The Commission has consistently held that in order for a formal complaint to be dismissed as identical, the elements of the complaint must be identical to the elements of the prior complaint in time, place, incident, and parties. See Jackson v. United States Postal Serv., EEOC Appeal No. 01955890 (Apr. 5, 1996).
Following a review of the record we find that claim 2 was previously raised under Agency No. FS201600585, and that Complainant's appeal of the Agency's FAD finding no discrimination is currently pending before this Commission under Appeal No. 0120180632. With regards to claims 1 and 5, however, we find that the Agency has not established that these claims were previously-raised. We note that FAD I found that claim 1 "was first alleged in [Agency No.] FS201600346 and in FS201600770, respectively. FS201600770 was consolidated with FS201600585 P." A review of the final agency decision (FAD II) addressing FS201600770, however, shows that the Agency characterized that claim as addressing an alleged denial of reasonable accommodation2 that occurred on May 11, 2016, while claim 1 of the instant complaint addresses a denial of reasonable accommodation that allegedly occurred on January 25, 2015. Claim 1 in the instant complaint is therefore not identical to the claim raised in FS201600770.
With regard to claim 5, FAD I found that the claim "was first alleged in FS201600265" and that no Formal complaint was filed on the matter. We note that the record does not contain a copy of the informal complaint for FS201600265 showing exactly what allegations Complainant discussed with the Counselor under that Agency number. The record contains a series of emails between an Agency EEO Counselor and someone with the same last name as Complainant but with a different first name. The emails show that this individual with Complainant's last name raised the matter of being given an overwhelming workload and that the EEO Counselor inquired whether he wished to add the matter to an existing complaint. Because the first names differ, however, it is not clear that the two individuals are the same. We note that Complainant's middle initial starts with a different letter than the first name of the person communicating via email with the Counselor and thus it does not appear that the Counselor was using Complainant's middle name instead of his first name. Nor does it appear that the person's first name is a commonly-known nickname or shortened version of Complainant's first name, in the way that "Bob" and "Dick" are commonly-used shortened versions of "Robert" and "Richard." Furthermore, Complainant's allegations in the instant complaint, as characterized by the Agency, are vague and nonspecific, containing no dates. Thus the Agency cannot establish that the allegations from the earlier complaint that management made the complainant perform his duties/responsibilities alone with an overwhelming work load, are identical to the instant allegations that Complainant was misled and bullied when given work assignments in an increasing workload, held to different standards, and made to perform work assignments under unsafe conditions. If we assume the individuals are the same person it is certainly possible that Complainant experienced similar acts of harassment on different occasions but that does not make the incidents identical.
Finally, we note that the email exchange between the EEO Counselor and the individual with the same last name as Complainant but different first name, occurred between August 19, 2016 and September 6, 2016, while the EEO Counselor report for the instant complaint shows that Complainant first contacted a Counselor on August 19, 2016. Assuming that the email exchange was between the EEO Counselor and Complainant, despite the different first name, the fact that the exchange began on the same date as Complainant's counselor contact does not support an inference that the email exchange addresses a prior abandoned complaint as opposed to the instant complaint.
We note that in Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14, 1993), the Commission stated that "the agency has the burden of providing evidence and/or proof to support its final decisions." See also Gens v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992). Because the allegations are nonspecific and the names do not exactly match, and because the date of the first email is the same date as Complainant's initial Counselor contact, we find that the Agency has not met its burden of showing that the harassment allegations in claim 5 of the instant complaint are identical to an earlier raised claim by the same Complainant that was subsequently abandoned by him.
With regard to claim 3, the Agency found that Complainant's EEO Counselor contact was untimely. Complainant is addressing events that occurred in 2007, but his EEO Counselor contact occurred on August 19, 2016. We therefore agree that his EEO Counselor contact was untimely.
Finally, with regard to claim 4, the Agency found that Complainant raised the same allegation in his EEO complaint (management's denial of a reasonable accommodation) that he previously raised in his grievance with the Agency. We disagree. In claim 4 of the instant complaint, Complainant is not alleging that management denied him a reasonable accommodation, he is alleging that management denied his grievance. Such an allegation, however, constitutes a collateral attack on the grievance process. The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. United States Postal Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v. United States Postal Service, EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to raise his challenges to the denial of his grievance is generally within that proceeding itself. Hence, we find that Complaint's claim that his grievance was denied does not state a claim.
CONCLUSION
We find that claims 2, 3, and 4 were properly dismissed, but that claims 1 and 5 were not. We therefore AFFIRM FAD I in part and REVERSE in part, and we REMAND claims 1 and 5 for further processing in according with this decision and the Order below.
ORDER (E1016)
The Agency is ordered to process the remanded claims 1 & 5 in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant 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 (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant 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. �� 1614.407 and 1614.408. 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 tend 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 (R0610)
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 within ninety (90) calendar days from the date that you receive this decision. 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 (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
April 5, 2018
__________________
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.
2 A review of the Formal complaint for FS201600770 shows Complainant to be alleging harassment based on conflicts with his ex-wife at work. It is unclear why the Formal complaint and FAD II differ in this regard.
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