[Redacted], Lan K., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Nov 29, 2021

Appeal No. 2021004704 (E.E.O.C. Nov. 29, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lan K.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021004704 Agency No. ARDRUM21JUN01806 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision (FAD) dated August 13, 2021, dismissing her 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Medical Support Assistant at the Agency’s Medical Department Activity, Connor Troop Medical Clinic in Fort Drum, New York. On August 6, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female), age (56), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when her second level supervisor failed to perform a proper investigation regarding an allegation that Complainant inappropriately touched another employee while at work. The Agency dismissed the complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1). The Agency noted that Complainant did not show any actions that would have any direct, tangible effect on a term, benefit, condition, or privilege of employment. 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. 2021004704 2 The Agency added that the fact that they conducted an investigation into an allegation of sexual harassment involving Complainant as a perpetrator does not constitute discrimination or retaliation. Complainant filed the instant appeal. CONTENTIONS ON APPEAL Complainant did not file a brief in support of her appeal. The Agency asserts that an internal investigation into employee misconduct is within supervisory discretion. As such, the Agency argues, Complainant’s complaint was an improper collateral attack. The Agency further contends that, as Complainant did not “allege she suffered a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy,” it was proper for the Agency to dismiss the complaint for failure to state a claim. ANALYSIS AND FINDINGS The regulation set forth at 29 C.F.R. § 1614.107(a)(1) states, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. 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. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). In this regard, while Complainant has alleged that her second level supervisor was improper in his investigation into the inappropriate touching incident between Complainant and another employee, she does not allege that she suffered any specific harm or loss with regard to a term, condition, or privilege of employment for which there is a remedy. Id. Further, a complaint shall be dismissed for failure to state a claim where the complainant impermissibly uses the EEO complaint process to lodge a collateral attack on another forum's proceeding. 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 workers' compensation process, an internal agency investigation, or state or federal litigation. See Fisher v. Dep't of Def., EEOC Request No. 05931059 (July 15, 1994). In the instant complaint, Complainant alleged discrimination when she was subjected to an internal investigation. We find that such a claim constitutes a collateral attack on the internal investigation process. Therefore, we find that the Agency’s dismissal of the complaint for failure to state a claim was appropriate. CONCLUSION In light of the above, the Commission AFFIRMS the Agency's final decision dismissing the complaint at hand. 2021004704 3 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. 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). 2021004704 4 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 November 29, 2021 Date