Fawn G,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Oct 23, 2018

0120182704 (E.E.O.C. Oct. 23, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Fawn G,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Forest Service),
Agency.

Appeal No. 0120182704

Agency No. FS-2018-00664

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated June 21, 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 Human Resources
Assistant, 0203, GS-07 at the Agency’s Albuquerque Service Center facility in Albuquerque,
New Mexico.

In December 2017, prior to the filing of the current claim, Complainant filed an EEO complaint
against the Agency, alleging harassment (non-sexual) based on mental disability (PTSD/anxiety).
The employee accused of harassment (CW) was a supervisor in Complainant’s work group but
was not in her chain of command. The Report of Investigation (ROI) included an affidavit from
CW containing statements in defense against Complainant’s allegations, including statements
that she was colluding with two (2) co-workers to make fraudulent claims against CW, which
CW referred to as a scam, and that Complainant was physically, sexually, and psychologically
abused by her father and ex-husband. The ROI was completed on May 24, 2018.

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.
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A hearing by an EEOC Administrative Judge has been requested and the claim is currently
pending before the Commission’s Phoenix District Office as EEOC No. 540-2018-00279X.

On June 20, 2018, after the completion of the ROI and during the pendency of her claim filed in
December 2017, Complainant filed a formal EEO complaint alleging that the Agency subjected
her to harassment (sexual and non-sexual) and discrimination on the bases of sex (female) and
reprisal for prior protected EEO activity when, on April 29, 2018, she became aware that CW
had submitted the sworn statements in the ROI noted above.

On June 21, 2018, the Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1)
for failure to state a claim. In so doing, the Agency concluded that Complainant’s claim was a
collateral attack on the prior EEO complaint and the investigative process. The Agency also
noted that allowing such a claim to proceed would have a chilling effect on the filing of EEO
complaints by aggrieved persons. The instant appeal followed.

On appeal, Complainant explains that CW falsely stated that Complainant had been abused and
molested by her father with the full knowledge that Complainant’s father had end stage cancer
and Complainant was emotionally distraught by his condition. This false statement was an act of
harassment, as he knew Complainant would read it. Upon reading the statement, Complainant
was so distraught that she had an emotional breakdown and was unable to function or work.
Complainant filed the instant complaint against CW for harassment and reprisal in relation to
these statements. She also filed the complaint against other members of the Agency’s
management as they refused to prevent CW from harassing Complainant, despite her requests for
assistance.

Complainant asserts that the instant claim is not a collateral attack on her prior EEO claim or
process. She argues that the instant complaint does not affirmatively challenge a determination
by an adjudicatory body or the agency’s actions within an adjudicatory process and is, therefore,
not a collateral attack. She asserts that CW’s statements made during the prior EEO matter were
false and an act of harassment, in and of themselves.

In response, the Agency reiterates its argument for dismissal as found in its decision. The
Agency states that Complainant’s argument fails because she cites no cases in support of her
argument involving separate EEO processes. The Agency adds that, even if the instant case were
analogous to those cases cited, Complainant is challenging an agency action within an
adjudicatory process, i.e., the alleged false statements of an agency official given in defense of
an administrative complaint of employment discrimination filed by Complainant. The Agency
further asserts that, if the Commission were to affirm the dismissal, Complainant is free to
challenge the statements of CW through prosecution of the original complaint, which is still
pending before the Commission.

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ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. § 1614.107(a)(8) provides that an agency shall dismiss a complaint
that alleges dissatisfaction with the processing of a previously filed complaint. Chapter Five of
the EEOC Management Directive 110 (MD-110) (Aug. 5, 2015) defines such a complaint as a
“spin off” complaint. MD-110 indicates further that “spin-off” complaints should be referred to
the agency official responsible for complaint processing and/or processed as part of the original
complaint. See id.; see also Complainant v. Dep’t of Health and Human Servs., EEOC Appeal
No. 05910159 (February 11, 1991).

In the instant case, Complainant raises complaints regarding the actions and testimony of
individuals during the process of the prior EEO complaint. We find that this does not state a
claim. It is appropriately viewed as a “spin-off complaint” subject to dismissal under 29 C.F.R. §
1614.107(a)(8). Complainant should raise any claims regarding the processing of her prior EEO
complaint or the actions and testimony of individuals while that prior EEO complaint is being
processed, such as with the EEOC Administrative Judge, and not in a new complaint. According
to EEOC's Management Directive (MD-110) at 9-16, claims of improper handling should be
processed as part of the underlying complaint, and not as an independent claim. If a final Agency
decision is issued on a complaint where a complainant has an issue with its processing, he or she
may also raise the concerns in an appeal.

Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.

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.
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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.

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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

October 23, 2018
Date