[Redacted], Ivan V., 1 Complainant,v.General Paul M. Nakasone, Director, National Security Agency, Agency.

Equal Employment Opportunity Commission

Dec 2, 2021

Appeal No. 2021003773 (E.E.O.C. Dec. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ivan V.,1 Complainant, v. General Paul M. Nakasone, Director, National Security Agency, Agency. Appeal No. 2021003773 Agency No. 21-022 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated May 13, 2021, dismissing a formal complaint alleging 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 During the period at issue, Complainant worked as an Analyst, GS-13, at the Agency’s FTX3B Operations in Ft. Meade, Maryland. On March 25, 2021, Complainant filed a formal EEO complaint claiming that the Agency unlawfully retaliated against him in violation of Title VII when it initiated an investigation against him. A reading of his complaint, in conjunction with the related EEO counseling report, shows Complainant alleged that on August 20, 2020, his wife (who was also an Agency employee) was contacted by her supervisor about returning to work from “work and safety” administrative leave (“WSL”) due to the COVID-19 pandemic. 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. 2021003773 2 Complainant’s wife apparently informed her supervisor that she was pregnant and could not return to work. Complainant asserted that his wife’s supervisor responded that the real reason she did not want to return to work was because she and Complainant had moved a significant distance (3½ hours away) from their duty station.2 Thereafter, Complainant stated that his spouse learned on September 16, 2020, that the Agency’s Office of Inspector General (“OIG”) had opened an investigation on her, and she initiated EEO counseling two days later alleging sex and pregnancy discrimination. Shortly after his wife initiated the EEO complaint process, Complainant alleges that he was notified that the OIG was opening an investigation on him regarding whether he and his spouse improperly used WSL when they moved more than two hours away from the office. Complainant alleged the investigation against him was opened in retaliation for his wife’s EEO activity. In its May 13, 2021 final decision, the Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim, finding that Complainant was lodging an improper “collateral attack” on the OIG investigation. 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 (April 21, 1994). If a complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1). This Commission has held that 29 C.F.R. § 1614.107(a)(1) should be interpreted to, among other things, prevent an employee from using the EEO complaint process to lodge a collateral attack on another adjudicatory 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). A claim that can be characterized as a collateral attack, by definition, involves a direct challenge to another forum's adjudicatory proceeding, such as the negotiated grievance process, the workers' compensation process, or state or federal litigation. Here, Complainant is alleging he was subjected to unlawful retaliation for his wife’s EEO activity when an OIG investigation was initiated against him. 2 The record indicates that WLS employees were required to be able to reach their duty stations within two hours in case they were recalled to their duty stations. 2021003773 3 As an initial matter, we note that the Commission has long held that employees who are subject to alleged retaliation for the EEO activities of their spouses have standing to bring a reprisal complaint. See Fiene v. United States Postal Service, EEOC Request No. 05930560 (February 25, 1994); Brown v. Dept. of Veterans Affairs, EEOC Appeal No. 01A46150 (April 6, 2006). We find that the Agency erred in dismissing Complainant’s complaint as an impermissible “collateral attack” on another proceeding because the OIG investigation was not adjudicatory proceeding, but rather an information-gathering process that could lead to later management action. Nonetheless, we conclude that the complaint should be dismissed, albeit for a different reason than that proffered by the Agency. The Commission has previously held that, in most circumstances, merely conducting an internal investigation into purported misconduct does not, without more, such as resulting disciplinary action, cause injury sufficient to render the subject of the investigation aggrieved. See Shelly v. Dep't of the Treasury, EEOC Appeal No. 01996655 (Oct. 27, 2000); Sorrell v. Department of the Navy, EEOC Appeal No. 01A14314 (January 24, 2002), request to reconsider denied, EEOC Request No. 05A20454 (May 2, 2002). This rule has been applied in instances where the alleged discriminatory act is the initiation of an internal investigation. Martin v. Dep't of Justice, EEOC Appeal No. 01A32934 (Sept. 17, 2003); Heard v. Dep't of Justice, EEOC Appeal No. 0120092680 (Aug. 27, 2009); Erika H. v. Dep’t of Labor, EEOC Appeal No. 0120181326 (May 11, 2018). Here, Complainant has not alleged that he was subjected to disciplinary action or any other adverse action as a result of the OIG investigation. Without more, the claim that he was the subject of an OIG investigation does not present an allegation of a present harm or loss for which there is a remedy. Under the particular circumstances presented by this case, we conclude Complainant has failed to state a viable claim even considering our more liberal view of what states a claim of unlawful retaliation. Accordingly, we AFFIRM the Agency’s final decision dismissing the instant EEO complaint for the reasons discussed above. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if 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. 2021003773 4 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, a 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). 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. 2021003773 5 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 2, 2021 Date