0520180087
04-11-2018
Nerissa S.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Nerissa S.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Request No. 0520180087
Appeal No. 0120171616
Agency No. ARUSAR16DEC04937
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120171616 (September 20, 2017). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. � 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c).
Complainant worked as a Director of Army Reserve Family Programs at the Agency's U.S. Army Reserve Command Headquarters in Fort Bragg, North Carolina. Complainant filed an EEO complaint alleging she was unlawfully retaliated against for prior EEO activity when, in November 2016, she discovered that several Agency officials, who had knowledge of her EEO activity, intentionally provided false, misleading, and incomplete information during an investigation, and subsequent False Claims Act lawsuit against her.
EEOC Appeal No. 0120171616 affirmed the Agency's dismissal of the complaint for failure to state a claim. The decision found the complaint was a collateral attack on the Agency's Criminal Investigative Division (CID) investigation into her participation in alleged violations of the False Claims Act.
In her request for reconsideration, Complainant asserts in October 2015, she was named in a False Claims Act action in federal court, accused of unlawful contracting improprieties in collaboration with other defendants, who were contractors with the Agency. During pre-trial depositions, Complainant alleges that she discovered that several Agency management officials "provided [investigators] intentionally misleading information and withheld significant information, with the ultimate intention of having the government accuse [her] of committing False Claims Act violations." Complainant further alleged that these management officials were motivated by retaliatory animus towards her due to her prior EEO activity.
Complainant represents that she sought and was granted summary judgment in her favor by the U.S. District Court Judge presiding over the False Claims Act case. In sum, Complainant argues that the claim in her EEO complaint is not an attack on any CID investigation, but rather a claim that a number of Agency management officials, in retaliation for her prior EEO activity, provided "intentionally misleading, false, slanted and incomplete information to the U.S. Attorney" with the aim of the filing of a "frivolous False Claims Act lawsuit" against her.
The anti-retaliation provisions of the employment discrimination statutes seek to prevent an employer from interfering with an employee's efforts to secure or advance enforcement of the statutes' basic guarantees, and are not limited to actions affecting employment terms and conditions. Burlington Northern & Santa Fe Railroad. Co. v. White, 548 U. S. 53, 126 S. Ct. 2405 (2006). To state a viable claim of retaliation, a complainant must allege that: 1) she was subjected to an action which a reasonable employee would have found materially adverse, and 2) the action could dissuade a reasonable employee from making or supporting a charge of discrimination. Id. See also EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004 (August 25, 2016).
Here, we agree with Complainant's argument that she has alleged a claim of unlawful retaliation under Title VII, one she might adjudicate in a civil action in federal district court, as indicated in the cases she cites in her brief submitted in support of her reconsideration request. However, the Commission has long held that an employee cannot use the administrative EEO complaint process to lodge a collateral attack on another adjudicatory proceeding. See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. United States Postal Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v. United States Postal Service, EEOC Request No. 05930106 (June 25, 1993). Here, the essence of Complainant's claim is that the named management officials perjured themselves during the False Claims Act proceeding, including the decision-making process by the U.S. Attorney in bringing the lawsuit and the adjudication of the case by the U.S. District Court. As our previous decision concluded, the proper forum for Complainant to have raised her challenges to the actions of witnesses in the False Claims Act proceeding, including during pre-trial depositions, was within that proceeding itself, and not in the EEO complaint process. In sum, we correctly determined that the administrative complaint should be dismissed as a collateral attack on the lawsuit.2
We emphasize that a request for reconsideration is not a second appeal to the Commission. See EEO MD-110, Ch. 9, � VII.A. Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here.
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 0120171616 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
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 11, 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 Our previous decision characterized the complaint as a collateral attack on the CID investigation. However, a fair reading of the complaint, as well as Complainant's arguments on appeal, show that it is more accurate to characterize the complaint as a collateral attack on the False Claims Act lawsuit, a clear adjudicatory process.
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