0120160121
02-03-2016
Judson G.,1 Complainant, v. Eric Fanning, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Judson G.,1
Complainant,
v.
Eric Fanning,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120160121
Agency No. ARRIA15MAY02088
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated August 18, 2015, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the reasons that follow, we AFFIRM the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Production Clerk, GS-4, at the Agency's U.S. Army Joint Manufacturing and Technology Center in Rock Island, Illinois. Complainant contacted an EEO Counselor and initiated pre-complaint counseling on May 28, 2015, and received notice of his right to file a formal complaint on July 20, 2015. On August 3, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of sex (male), disability (back and neck injury), age (55), and reprisal for prior protected EEO activity under the Rehabilitation Act when:
1. The Agency did not provide reasonable accommodation for his back and neck injury by reassigning Complainant to a position which does not require sitting for long periods of time or by providing an ergonomic chair;
2. The Agency did not provide reasonable accommodation for Complainant's fluctuating body temperature and blood pressure by lowering the office temperature or providing sufficient ventilation;
3. Complainant has not received a 1% cost of living increase since accepting the position of Production Clerk on March 28, 2013;
4. Complainant experienced reprisal for requesting reasonable accommodation when he received discriminatory treatment in favor of female employees, was considered for a "dead-end job," his workers' compensation claim was denied, and he was singled out for socializing with employees and disrupting production; and
5. Complainant did not receive an incentive award in the year 2012.
In the Agency's dismissal, Complainant's claims were restructured from the five listed above into fourteen discrete claims as follows:
a. On July 22, 2015, Complainant discovered that he was being paid less than two female GS-5 employees who perform the same work;
b. In July 2015, Complainant's first-line supervisor (S1) did not approve Complainant's request for training;
c. In December 2014, Complainant was not provided a standing/sitting desk as a reasonable accommodation;
d. In July 2014, S1 told Complainant that he might consider a GS-5 Office Assistant position;
e. In July 2014, S1 told Complainant that if he has difficulty sitting he should walk in the hallway outside his office;
f. From February 2014 through June 2014, S1 did not grant Complainant's request for accommodation for heat and ventilation problems;
g. In February 2014, Complainant's request for a cooler office temperature and sufficient ventilation was not granted;
h. On October 21, 2013, a supervisor in another department advised employees of that department not to socialize with Complainant;
i. Since April 2013, Complainant has received a 0.5% cost of living increase instead of a 1% cost of living increase;
j. In April 2013, Complainant was transferred from a manual labor GS-11[sic]2 position to a Production Clerk GS-4 position;
k. On an undetermined date prior to his April 2013 transfer to a Production Clerk position, Complainant's former supervisor and a workers' compensation specialist sought to place Complainant in a dead-end job that would not utilize his skills and background;
l. His March 6, 2013 request for an ergonomic chair was not granted;
m. In 2012 he did not receive an incentive award; and
n. On an undetermined date, another of Complainant's former supervisors attempted to deny Complainant's workers' compensation claim.
The Agency did not make a determination regarding claims a and b, stating that these claims had not been counseled and thus a determination on acceptance or dismissal of these claims could not be made. The Agency referred Complainant to an EEO Counselor for counseling on claims a and b. The remaining claims (c through n) were dismissed pursuant to 29 C.F.R. � 1614.107(a)(2) for failure to contact an EEO counselor within forty-five (45) days of the alleged discriminatory act as required by 29 C.F.R. � 1614.105(a)(1). The Agency also dismissed claims i, j, k, and n pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim, noting that these claims relate to Complainant's workers' compensation claim and thus constitute a collateral attack on the Office of Workers' Compensation Programs (OWCP) process, and that prior Commission decisions have barred claims that lodge a collateral attack on another proceeding.
CONTENTIONS ON APPEAL
Complainant offers no contentions regarding the Agency's decision not to reach a decision regarding two of the fourteen claims that the Agency identified on the basis that these claims were not counseled before Complainant included them in his formal complaint. Complainant contends in his brief that he did make contact with EEO Counselors regarding each allegation of discrimination within 45 days of the act, and thus his claims are not barred by 29 C.F.R. � 1614.105(a)(1).
The Agency contends on appeal that Complainant's communications related to each of his claims do not constitute an initiation of pre-complaint proceedings and thus do not satisfy the 45-day requirement for initial contact with an EEO Counselor. The Agency also reiterates its position that four of the fourteen claims it identified constitute a collateral attack on the OWCP process and thus are not within the purview of the Commission.
ANALYSIS AND FINDINGS
For the purpose of clarity and consistency, the Agency's deconstruction of Complainant's allegations into fourteen discrete claims will be used in this decision.
Dismissal of Claims a and b for Lack of Counselor Contact
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which raises a matter that has not been brought to the attention of an EEO Counselor, and is not like or related to a matter on which the complainant has received counseling. A later claim or complaint is "like or related" to the original complaint if the later claim or complaint adds to or clarifies the original complaint and could have reasonably been expected to grow out of the original complaint during the investigation. See Scher v. U.S. Postal Serv., EEOC Request No. 05940702 (May 30, 1995); Calhoun v. U.S. Postal Serv., EEOC Request No. 05891068 (March 8, 1990).
Claim a pertains to Complainant's allegation that he was being paid less than two female employees for performing the same work. Complainant notes in his brief that he discovered the discrepancy in pay on July 22, 2015, two days after the date on his Notice of Right to File Formal Complaint. Claim b pertains to Complainant's allegation that S1 did not approve his requests for training which Complainant states occurred in July 2015, after he initiated contact with an EEO Counselor on May 28, 2015.
Because Complainant does not offer any contention in his brief that these claims should not have been dismissed, and because these issues were later brought before an EEO Counselor in a pre-complaint inquiry concluded on September 23, 2015, the Agency's decision to dismiss these claims from the instant complaint for lack of counselor contact is AFFIRMED.
Dismissal of Claims c through n for Untimely Contact
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent.
A complainant satisfies the criterion of Counselor contact by contacting an agency official logically connected with the EEO process, even if that official is not an EEO Counselor, and by exhibiting an intent to begin the EEO process. See Cox v. Dep't of Housing and Urban Development, EEOC Request No. 05980083 (July 30, 1998); Allen v. U.S. Postal Serv., EEOC Request No. 05950933 (July 9, 1996).
In this case, Complainant initiated pre-complaint counseling with an EEO Counselor on May 28, 2015. Complainant's brief does not argue that any acts of discrimination occurred within 45 days prior to May 28, 2015, but Complainant contends that he did make contact with officials regarding his claims within 45 days of their occurrence. However, many of the communications on which Complainant bases this contention were not with officials involved in the EEO process but rather to Complainant's supervisor or his attorney. Further, the documentation offered by Complainant recording his contact with EEO officials indicates that these were informational contacts and do not demonstrate that he expressed an intention to initiate the complaint process. Thus, the Agency's dismissal of Complainant's claims for untimely EEO Counselor contact is AFFIRMED.
Dismissal of Claims i, j, k, and n for Failure to State a Claim
Dismissal of an EEO complaint is appropriate where the complainant is attempting 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). For example, a complainant cannot use the EEO complaint process to challenge actions which occurred within the U.S. Department of Labor Office of Worker's Compensation Programs (OWCP) adjudicatory process for workers' compensation claims. Janiece H. v. U.S. Postal Serv., EEOC Appeal No. 0120160070 (Jan. 8, 2016).
Here, Complainant was reassigned to the position of Production Clerk after he filed a workers' compensation claim with the OWCP. Claims i, j, and k concern Complainant's reassignment, and Claim n concerns the actions of his former supervisor while Complainant's workers' compensation claim was being processed. Thus, these claims cannot be brought under the EEO complaint process and must remain within the purview of the OWCP. The Agency's dismissal of these claims for failure to state a claim therefore is AFFIRMED.
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 (M0815)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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, P.O. Box 77960, Washington, DC 20013. 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 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
February 3, 2016
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 record shows that in 2013 Complainant was transferred from an Equipment Installer, WG-08, position, pursuant to the OWCP process.
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