U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alvaro M,1 Complainant, v. Wilbur L. Ross, Jr., Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency. Appeal No. 2020004133 Agency No. 54201900474 DECISION Complainant timely appealed with the Equal Employment Opportunity Commission (“EEOC” or “Commission”) from the Agency's February 19, 2020 dismissal of 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as Chief of the Operations, Management and Information Division, or Executive Officer, for the Pacific Islands Regional Office (“PIRO”) of the Agency’s National Marine Fisheries Service (“NMFS”), located in Honolulu, Hawaii. On January 3, 2020, Complainant filed a formal complaint alleging that he had been subjected to reprisal for prior protected EEO activity (witness in EEO and Inspector General investigations), when: on July 30, 2019, his supervisor (“S1”), issued him a Letter of Reprimand (“LOR”) to be held in his Employee File for 2 years. 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. 2020004133 2 On August 2, 2019, Complainant contacted an EEO Counselor at the Agency’s Office of Inclusion and Civil Rights (“OICR”), alleging that S1 subjected him to a hostile work environment and issued the July 30, 2019 LOR in retaliation for his prior protected EEO activity. The EEO Counselor began pre-complaint processing, and the matter was assigned Agency Case No. 54201900378 (“Complaint 1”). On or about August 8, 2019, Complainant discussed his options with his EEO Counselor, and informed her that he decided to pursue an informal grievance on the LOR rather than an EEO action. In a follow up email, the EEO Counselor provided Complainant with a Withdrawal Notice to sign and return to OICR. Upon reading the Withdrawal Notice, Complainant became aware that his informal counseling session on August 2, 2019, resulted in Complaint 1, which was assigned a case number and listed the July 30, 2019 LOR as one of his retaliation claims. On or about August 14, 2019, Complainant signed and submitted the Withdrawal Notice for Complaint 1 to the OICR. Prominently located within the Withdrawal Notice was a list in bulleted format, using bold for emphasis, explaining that by signing the Withdrawal Notice, Complainant was confirming that he did so “voluntarily and without coercion.” It also explained that “[a]ll actions related to addressing and processing the allegations of discrimination identified with [Complaint 1] will cease, and once withdrawn, [Complaint 1] “cannot be reinstated.” Then he submitted an informal grievance to S1 in accordance with the Agency’s policy “Administrative Grievance Procedure.” S1 did not respond. On September 12, 2019, the last possible day to timely initiate an EEO Complaint for an allegation of discrimination that allegedly occurred on July 30, 2019, Complainant withdrew his informal grievance on the July 30, 2019 LOR and initiated the instant complaint with the EEO Counselor. He notified S1 in an email that he specifically intended to pursue the LOR in an EEO Complaint. The Agency dismissed the matter pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim, because Complainant raised the same claim in Complaint 1. The instant appeal followed. ANALYSIS AND FINDINGS Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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). If the complainant cannot establish that she is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1). 2020004133 3 Same Claim Under 29 C.F.R. § 1614.107(a)(1) a complaint that states the same claim that is pending before or has been decided by the Commission or the Agency shall be dismissed. To be dismissed as the "same claim," the present formal complaint and prior complaint must have involved identical matters. The Commission has consistently held that in order for a formal complaint to be dismissed as identical, the elements of the complaint must be identical to the elements of the prior complaint in time, place, incident, and parties. See Jackson v. United States Postal Serv., EEOC Appeal No. 01955890 (Apr. 5, 1996). In the instant case, neither the Agency nor the Commission issued a decision on the matter because Complainant withdrew Complaint 1 during the pre-complaint phase. However, we have previously held that a once a complainant has withdrawn an informal complaint, absent a showing of coercion, the complainant may not reactivate the EEO process by filing a formal complaint on the same issue. See Allen v. Dep’t of Def., EEOC Request No. 05940168 (May 25, 1995). On appeal, Complainant argues that the Agency erred in determining that he signed and submitted a Withdrawal Notice for Complaint 1 voluntarily and without coercion because he was “under the impression” that he could pursue an EEO Complaint if the informal grievance “did not work out.” Alternately, Complainant argues that he signed the Withdrawal Notice “reluctantly” in order to preserve his ability to pursue a grievance. Neither of these explanations describes coercion. Complainant does not dispute that he signed and submitted the Withdrawal Notice, and that he was aware that it stated that withdrawing Complaint 1 would bar him from raising the same complaint again. Likewise, Complainant has not provided evidence that he signed the Withdrawal Notice because he was misled by the EEO Officer. If Complainant felt “reluctant” or he noticed that the terms on the Withdrawal Notice were incongruent with his “impression” of the EEO process, his EEO counselor offered to answer any questions Complainant had when she sent him the Withdrawal Notice to sign. Alternately, Complainant argues that the allegation in the instant complaint is not identical to the claim in Complaint 1. Rather, he argues that the “true nexus” of this complaint was that S1 failed to respond to his informal grievance “within the proscribed time frames as per agency policy DAO 202-771 Section 7(h) (Administrative Grievance Procedure)… which caused [him] additional harm and violated [his] due process rights.” He recounts that before withdrawing his informal grievance, he consulted with his EEO Counselor and she informed him that he could pursue a new EEO complaint because S1’s failure to respond to the informal grievance was a new retaliatory act. The Agency provided sufficient evidence to support that the instant complaint and Complaint 1 raise identical issues. Complainant’s Formal Complaint and the pre-complaint documents reflect that the LOR itself, not S1’s failure to respond to the August 12, 2019 informal grievance arising from the LOR, is the alleged retaliatory act at issue in this complaint. 2020004133 4 The only reference Complainant makes in the record to S1’s failure to respond to his informal grievance is in the context of his explanation for (re)initiating an EEO complaint on the matter of the July 30, 2019 LOR. Also, Complainant expressly stated his intent to pursue an EEO Complaint on the July 30, 2019 LOR in the contemporaneous email he sent to S1 withdrawing his informal grievance. Collateral Attack & Improper Forum It is well established that the EEO process cannot be used to lodge a collateral attack against another proceeding. 29 C.F.R. § 1614.107(a)(1). "A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum's proceeding, such as the grievance process, the unemployment compensation process, or the workers' compensation process." See Lingad v. United States Postal Serv., EEOC Request No. 05930106 (June 25, 1993), Kleinman v. United States Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998). Because it is the focus of much of his argument, we note that Complainant’s emphatic assertion that S1 violated Agency guidance under its Administrative Order 202-771 Section 7.01(h), which provides that a response is required within 15 days of receipt of an informal grievance, is irrelevant to this decision. To the extent he is seeking enforcement of Agency policy, Complainant’s argument amounts to an impermissible collateral attack. See, e.g. Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120142347 (Nov. 5, 2014) (dismissing the complainant’s EEO complaint alleging that the Agency would not comply with a grievance decision as a collateral attack). The proper forum to raise a violation of an Agency Administrative Order would be provided within the Order itself. Dissatisfaction with Complaint Processing Under 29 C.F.R. § 1614.107(a)(8), 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. The MD-110 provides that "spin-off" complaints should be referred to the agency official responsible for complaint processing and/or processed as part of the original complaint. On appeal, Complainant raises allegations about the processing of Complaint 1. For instance, he felt that “a case file should never have been opened” and that the Agency “set him up for failure” by assigning Complaint 1 a case number after his initial interview but prior to an investigation of his allegation. He also alleged that he learned that the EEO Counselor did not take any action, such as contacting his supervisor, after the initial interview. Such allegations should have been raised with the agency official responsible for complaint processing. Relevant to the instant complaint, Complainant argues that the Commission should disregard the signed Withdrawal Notice, he submitted for Complaint 1 because the allegations had not yet been investigated and should not have been assigned an EEO Case Number to begin with. 2020004133 5 Complainant did not identify any EEOC guidance or regulatory provision to support this theory. We reiterate that Complainant signed and submitted the Withdrawal Notice voluntarily and without coercion. Although he was surprised to see that Complaint 1 was assigned a complaint number and identified claims, when he received the Withdrawal Notice, Complainant was ultimately aware of these developments when he decided to sign and submit the Withdrawal Notice. The Agency properly dismissed Complainant’s Complaint for stating the same claim raised in a previous complaint. CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the complainant or the agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 2020004133 6 Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 January 6, 2021 Date
