Margot Y.,1 Complainant,v.Scott Pruitt, Administrator, Environmental Protection Agency, Agency.

Equal Employment Opportunity Commission

Dec 19, 2018

2019000466 (E.E.O.C. Dec. 19, 2018)

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

Margot Y.,1
Complainant,

v.

Scott Pruitt,
Administrator,
Environmental Protection Agency,
Agency.

Appeal No. 2019000466

Agency No. 2018-0142-HQ

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) from an Agency final decision, dated September 4, 2018, dismissing a formal
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. The Commission accepts
the appeal in accordance with 29 C.F.R. § 1614.405.

BACKGROUND

During the relevant time, Complainant was a former employee2 of the Agency who had worked as
a Program Analyst at the Agency’s Office of Land and Emergency Management (OLEM), in the
Office of Underground Storage Tanks (OUST) in Washington, D.C.

Believing that she was subjected to unlawful discrimination, Complainant contacted an EEO
Counselor on July 2, 2018. Informal efforts to resolve Complainant’s concerns were unsuccessful.
On July 31, 2018, Complainant filed a formal complaint based on race, sex, color, disability, age,
and in reprisal for prior protected EEO activity.

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 According to the Agency, Complainant’s employment was terminated on April 18, 2018.
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The Agency framed the claim as follows:

On May 23, 2018, Deputy Director, OLEM, OUST, issued a decision finding no
harassment as a result of an EPA Order 4711 investigation.3

In its September 4, 2018 decision, the Agency dismissed the formal complaint for failure to state
a claim. The Agency reasoned that the complaint concerned another administrative proceeding,
and was an impermissible collateral attack. The Agency found that Complainant’s dissatisfaction
with the outcome of an Order 4711 investigation should have been with the decision maker in that
process.

Complainant filed the instant appeal.

ANALYSIS AND FINDINGS

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 have raised her challenges to actions which occurred during the Order 4711
investigation was at that proceeding itself. It is inappropriate to now attempt to use the EEO
process to collaterally attack actions which occurred during another adjudicatory process.

The Agency’s EEO Office “Intake Form” reflects that Complainant sought EEO counseling
regarding a May 23, 2018 notice, finding no harassment following an investigation of her EPA
Order 4711 complaint. This same claim is contained in the EEO Counselor’s Report4, as well as
the Notice of Final Interview and formal complaint. The record also includes an August 28, 2018
email, wherein the Agency sought to confirm that the claim, regarding the May 23, 2018 Order
4711 decision, was an accurate depiction of her EEO complaint. Complainant plainly affirmed
that it was correct.

3 We take administrative notice that the EPA Order No. 4711 provides for an Agency procedure
for addressing harassment claims “not intended to replace or impede the Equal Employment
Opportunity discrimination complaint process. . . or negotiated grievance processes for employees
in collective bargaining units, and it does not alter the filing deadlines for invoking those
processes.”

4 Within the “Summary of Interview with Aggrieved” the EEO Counselor noted that: “Aggrieved
confirmed her claim. She stated that her employment with the Agency was terminated on April 18,
2018. Aggrieved has filed a formal grievance under union procedures concerning the termination,
but she stated that the matter of the decision regarding the EPA Order 4711 decision is not part of
that grievance.” Further, the Counselor Report stated that Complainant believed the decision
finding no harassment was due to her race and disability.
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Therefore, we find that the instant complaint is an impermissible collateral attack on the Agency’s
Order 4711 decision. Complainant cannot use the EEO process to express her dissatisfaction with
the processing or outcome of her Order 4711 investigation.

CONCLUSION

The Agency’s final decision dismissing the instant formal complaint is AFFIRMED, for the reason
discussed above.

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).
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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

December 19, 2018
Date