[Redacted], Melani F., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Health Agency), Agency.

Equal Employment Opportunity Commission

Apr 22, 2021

Appeal No. 2021001557 (E.E.O.C. Apr. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Melani F.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Health Agency), Agency. Appeal No. 2021001557 Agency No. DHANCR 20-0040 DECISION On December 2, 2020, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a November 7, 2020 final Agency decision (FAD) 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 was formerly employed by the Agency as a Physician (Chief of Occupational Medicine), GP-0602-15 at the Fort Belvoir Community Hospital in Fort Belvoir, Virginia. Complainant filed an equal employment opportunity (EEO) complaint dated July 10, 2020, alleging that the Agency discriminated against her based on her race/color (African American/Black), national origin (Commonwealth of Dominica in the Caribbean), sex (female), and reprisal for prior protected EEO activity under Title VII and the ADEA when: 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. 2021001557 2 1. Between 2018 through 2019, the Director, EEO and Diversity Inclusion Management at Fort Belvoir (EEO Director 1) who also served as an EEO counselor, an EEO Investigator, and other EEO staff at Fort Belvoir Community Hospital conspired against her with management by refusing to accept and/or thoroughly investigate her discrimination allegations; 2. Between 2018 through 2019, the Director of the Defense Health Agency Equal Opportunity and Diversity Management in Falls Church, Virginia (Director 2) and the EEO Manager, Chief of Complaints in the same office refused to provide oversight of EEO personnel; 3. In 2019, Director 2 told her she had to file an EEO complaint at the Fort Belvoir Community Hospital EEO Office; 4. On April 25, 2019, EEO Director 1 improperly delayed and misplaced documents that she sent to her with regard to her discrimination; 5. In July 2019, an EEO counselor forced her to amend her prior EEO Complaint DHANCR 19-0024 to include her May 29, 2019 termination; and 6. On May 27, 2020, she learned that EEO Director 1 violated her due process rights by denying her the right to file an EEO complaint in 2018, and for participating in an investigation with management concerning the same allegations that were not accepted by the EEO Office. The Agency dismissed the complaint because it alleged dissatisfaction with the processing of a previously filed complaint. The instant appeal followed. On appeal, Complainant argues that the Agency’s EEO practitioners are “toadies” who engage in systemic bias against African American health care professionals who seek to address discrimination. ANALYSIS AND FINDINGS EEOC 29 C.F.R. § 1614.107(a)(8) requires that prior to a request for a hearing on a case an agency shall dismiss an entire complaint that alleges dissatisfaction with the processing of a previously filed complaint. This includes informal EEO complaints. All of Complainant’s allegations fall within the scope of 29 C.F.R. § 1614.107(a)(8). Accordingly, the Agency properly dismissed her EEO complaint. We take administrative notice that Complainant’s prior EEO complaint DHANCR 19-0024 is pending before an EEOC Administrative Judge (AJ). On March 9, 2021, the parties had an initial teleconference before the AJ to discuss the issues for adjudication and other matters. 2021001557 3 The next day, explicitly relying on the Agency’s prior amended issues acceptance letter, the AJ issued an order recounting claims covering May 2018 - July 2019, with specific listed events from August 2018 to July 22, 2019. On April 1, 2021, in response to Complainant’s objection to the characterization of her claims and motion to reopen the EEO investigation, the AJ issued an order notifying Complainant she may file a motion specifically identifying which claims the Agency did not properly identify. The AJ also recounted that at another teleconference the Agency agreed to interview 18 additional witnesses and the AJ would rule on additional possible ones. The prior complaint is pending before the AJ. Because Complainant’s prior EEO complaint is pending before an AJ, the proper way for her to address her concerns about the EEO processing of that complaint is to raise them with the AJ - which it appears she is doing. The FAD is AFFIRMED. 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. 2021001557 4 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. 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. 2021001557 5 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 22, 2021 Date