0120160877
04-21-2016
Katina R.,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
Katina R.,1
Complainant,
v.
Eric Fanning,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120160877
Agency No. ARFTLEAV15SEP03607
DECISION
On December 18, 2015, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated November 16, 2015, dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. and 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 an Audiovisual Production Specialist, GS-9, at the Agency's Fort Leavenworth facility in Kansas.
She was hired as a civilian by the Agency in November 2008 via a noncompetitive excepted service appointment to the position of Audiovisual Production Specialist, GS-11, in Korea. Apparently following a reduction in force (RIF), Complainant was placed on in a Priority Placement Program and was moved effective July 13, 2014, to Fort Leavenworth as an Audiovisual Production Specialist at the GS-9, with pay retention.
Effective November 10, 2010, while still in Korea, Complainant was converted to a Career Conditional Appointment at the GS-11 level. One SF-50 reflecting this indicates the conversion was approved on December 8, 2010, and the second indicates is was approved on November 10, 2010. In her EEO complaint, as will be described below, Complainant contends that one SF-50 was fraudulent.
In December 2014, Complainant filed an individual right of action (IRA) appeal with the Merit Systems Protection Board (MSPB) alleging that in reprisal for protected disclosures (whistleblowing), from the Fall 2010 and continuing, the Agency failed to grade and pay her at the GS-12 level. She contended that in Korea, her position warranted a GS-12 level. Complainant contended that the Agency took action to promote her, but then in reprisal for whistleblowing did not do so, as evidenced in part by the two contradictory SF-50s described above. Following a hearing, a MSPB Administrative Judge (AJ) noted that neither SF-50 indicated Complainant was being promoted. The MSPB AJ credited the testimony of a Human Resources employee that the approval date was changed because the Agency's computer system since 2009 was set to fix SF-50 approval dates to match their retroactive effective dates. Complainant filed a petition for review with the MSPB. In December 2015, the MSPB issued a decision denying Complainant's petition. It observed that the two SF-50s documented her conversion to a career-conditional appointment effective November 10, 2010, and were virtually identical except for different approval dates. It found neither SF-50 documented that a promotion was effected or cancelled, and approvingly cited the MSPB AJ's credibility finding.2
Meanwhile, on November 3, 2015, Complainant filed her formal complaint alleging that she was discriminated against her based on her race (Black, American Indian, White), color (Fair Complexion), disability, and reprisal for prior protected equal employment opportunity (EEO) activity when on August 12, 2015, the Agency's Civilian Human Resource Agency (Human Resources) failed to proceed with an investigation that it fabricated a SF-50 with her Private Identifiable Information (PII) that was placed in her personnel record. She contended that the Agency intended to deceive the MSPB. On August 12, 2015, Human Resources emailed Complainant that it looked into the matter and the discrepancy in approval dates was caused by an automated data system, as described above.
The Agency dismissed the complaint on the ground that she elected to pursue this matter before the MSPB. 29 C.F.R. � 1614.107(a)(4). It found that the MSPB already ruled on the matter of the seemingly discrepant two SF-50s.
On appeal, Complainant argues that her appeal to the MSPB regarded the Agency's failure to promote her, and its jurisdictional ruling shows it did not address her November 3, 2015, EEO complaint which was about the fabrication of her SF-50.
In opposition to the appeal, the Agency argues that Complainant's complaint fails to state a claim - both because it constitutes a collateral attack on what occurred in the MSPB proceeding and Complainant was not harmed by the alleged failure to investigate.
ANALYSIS AND FINDINGS
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 or disabling condition. 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).
Here, Complainant alleges that the Agency failed to proceed with an investigation that it fabricated her SF-50 with her PII that was placed in her personnel record. She contented the Agency intended to deceive the MSPB. Complainant has failed to show that she was harmed. The two SF-50s contain the same effective action and PII - the only difference is the approval dates. Further, Complainant's contention that the Agency used the SF-50s to deceive the MSPB is a collateral attack on the MSPB process. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998). The proper place for her to pursue her contention that the Agency deceived the MSPB is with the MSPB itself - which she already did.
The FAD is AFFIRMED.
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
April 21, 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 In a prior jurisdictional ruling, the MSPB found that to the extent Complainant alleged reprisal for prior EEO activity, she did not allege with sufficient particularity any wrongdoing covered by 5 U.S.C. � 2302(b)(8) - she failed to make this sufficiently clear to the Office of Special Counsel or its Parent.
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