0120182325
09-18-2018
Darleen R.,1 Complainant, v. Wilbur L. Ross, Jr., Secretary, Department of Commerce (National Institute of Standards and Technology), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Darleen R.,1
Complainant,
v.
Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce
(National Institute of Standards and Technology),
Agency.
Appeal No. 0120182325
Agency No. 57-2018-00184
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated June 4, 2018, dismissing her 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Research Chemist, ZP-1320-V at the Agency's National Institute of Standards and Technology facility in Gaithersburg, Maryland.
On January 29, 2018, Complainant sought an EEO Counselor. When the matter was not resolved informally, on May 7, 2018, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination and harassment on the basis of sex (female) when:
1. Immediately upon his arrival as Acting Under Secretary (Acting Under Secretary) in February 2016, he began "cutting away" from her role as a Special Assistant in the Office of the Under Secretary based on his purported belief that the office did not need a Special Assistant. During this period, the Acting Under Secretary removed Complainant from supporting and attending high level meetings, cut funding for a multi-laboratory program she had "stood up" and for which she was serving as the program leader, and otherwise "cleared her who portfolio." In doing so, the Acting Under Secretary suggested that maybe they could have "fun" working together on other duties and activities that were of interest to him.
2. In or around the period after the Acting Under Secretary's arrival, he denied her and senior members of a team she led the opportunity to travel to the United Kingdom's National Physical Laboratory, despite her extensive work with the laboratory over the previous two years. This denied her the ability to engage in "international collaboration," which was a major criterion for being promoted.
3. On September 25, 2017, the Acting Under Secretary notified her in a "condescending" e-mail that she was being immediately demoted and must abandon her position as a Special Assistant. Consistent with the e-mail, she was transferred to the Agency's Material Measurement Laboratory on November 26, 2017.
4. On October 31, 2017, Complainant received a "Significant Contributor" rating on her Fiscal Year 2017 performance appraisal which was two levels lower than her prior performance appraisals.
5. In mid-November 2017, the Acting Under Secretary precluded her from being reassigned to the position of Director, Manufacturing Metrology Research and Training Initiatives, in the Laboratory Office. He instead pushed Complainant into the lowest staff level within the organization.
6. On November 29, 2017, the Acting Under Secretary denied her request to have her FY 2017 performance appraisal upgraded to a higher score.
7. On December 8, 2017, the Acting Under Secretary denied the issuance of a press release she had drafted.
8. On January 26, 2018, Complainant was advised by the Office of Human Resources Management officials that the Associate Director would remain the deciding official for her pending grievance regarding her FY2017 performance appraisal despite Complainant advising the office that this posed a conflict of interest. She indicated that the Associate Director previously reported to the Acting Under Secretary.
The Agency dismissed claim (8) for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1) finding that was alleging a collateral attack on the grievance process. The Agency dismissed claims (1) - (7) pursuant to 29 C.F.R. � 1614.107(a)(2) for failure to contact the EEO Counselor in timely manner. The Agency noted that Complainant contacted the EEO Counselor on January 29, 2018, which was beyond the 45-days after the date of the most recent remaining claim. Therefore, the Agency found that her claims of discrimination and harassment should be dismissed pursuant to 29 C.F.R. � 1614.107(a)(2).
This appeal followed.
ANALYSIS AND FINDINGS
Claim (8) - Collateral Attack on Grievance Process
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint 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, disabling condition, genetic information, or reprisal. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to raise challenges to actions which occurred during the grievance proceeding is at that proceeding itself. It is inappropriate to attempt to use the EEO process to collaterally attack actions which occurred during the grievance process.
On appeal, Complainant argues that the Agency misinterpreted claim (8) and that it should be considered another example of the harassment she experienced by the Acting Under Secretary, to be considered with her other seven allegations. However, we agree with the Agency that Complainant's allegation in claim (8) is clear - she was dissatisfied with the management official who would serve as the deciding official in her grievance and sought to have him replaced. This constitutes a collateral attack on the grievance process procedural decision to deny her request to have a different official decide the merits of her grievance.
Upon review of the record, we find that claim (8) constitutes a collateral attack on the Agency's processing of her administrative grievance. As such, the Agency properly dismissed this claim pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
Claims (1) - (7) - Untimely EEO Counselor Contact
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105, �1614.106 and �1614.204(c), unless the Agency extends the time limits in accordance with �1614.604(c). EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action.
We note that the Supreme Court of the United States held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002). Here, however, in light of the dismissal of claim (8), there is no alleged act that fell within the 45-day period.
Based on the record before us, we find that Complainant made initial contact with the EEO Counselor on January 29, 2018. The most recent event alleged by Complainant in support of her claim of harassment occurred on December 8, 2017, outside of the 45-day time limit. On appeal, Complainant argues that she actually initiated the EEO process three month earlier, on October 4, 2017. While it is undisputed that Complainant met with the Agency's Office of Civil Rights that day, the record contains a notice she signed during that meeting that clearly shows that she understood that she had not initiated the EEO process and that the 45-day deadline for initiating the process still applied.2 Despite the clear language of the notice she signed, Complainant waited until January 29, 2018, to initiate the informal EEO process.
Finally, Complainant argues that she was misinformed that her harassment investigation by the Agency's HR office was her EEO complaint. However, the record includes emails in which Complainant clearly stated that she was aware that the Agency's investigation into her alleged harassment was not the same investigation that would occur through the EEO complaint process.
Accordingly, the Agency's dismissal of claims (1) - (7) was appropriate pursuant to 29 C.F.R. � 1614.107(a)(2).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
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 (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
September 18, 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 The notice Complainant signed stated, "[y]ou have been given this on 10/4/17. This is for informational purposes only. You have not been entered into the EEO informal complaint process. You have 45 days from the date of the incident to initiate the EEO process."
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