[Redacted], Nicole K., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Mar 2, 2021

Appeal No. 2021001175 (E.E.O.C. Mar. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nicole K.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021001175 Agency No. 200P-0612-2020104677 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated October 29, 2020, dismissing a formal 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 During the period at issue, Complainant worked as an Administrative Officer, GS-12, at the Agency’s VA Sacramento Medical Center in Mather, California. On July 31, 2020, Complainant filed a formal EEO complaint claiming that the Agency discriminated against her and subjected her a hostile work environment based on race, sex, age, and in reprisal for prior protected EEO activity when: 1. when on June 9, 2020, Complainant learned she was to be the subject of a management inquiry; 2. on June 17, 2020, the Acting Service Chief was unhappy when Complainant did not grant blanket compensatory time for a subordinate; and 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. 2021001175 2 3. on July 1, 2020, the Chief of Staff denied Complainant’s request to re-locate two of her positions back to their original locations. In its October 29, 2020 decision, the Agency dismissed the formal complaint on procedural grounds. First, the Agency dismissed the formal complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for failure to state a claim. The Agency acknowledged that Complainant’s formal complaint referenced additional allegations but noted that they had already been raised in a prior complaint, identified as EEO Complaint No. 200P-0612-2020100460.2 The Agency noted that Complainant’s formal complaint also included additional alleged matters such as harassing emails; a November 14, 2019 yelling incident; and a December 19, 2019 morning huddle incident. However, the Agency asserted that these alleged incidents were not brought to the attention of the EEO Counselor and also untimely raised.3 The instant appeal followed. ANALYSIS AND FINDINGS Claim 1: Dismissal as a Collateral Attack An employee cannot use 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 challenge to another forum's adjudicatory proceeding or decision, such as the grievance process, the workers' compensation process, or state or federal litigation. See Fisher v. Dep't of Defense, EEOC Request No. 05931059 (July 15, 1994). 2 These claims included allegations concerning: (a) Complainant being asked to submit a retirement date on multiple occasions; (b) a refusal to adjust five hours of leave; (c) an administrative grievance regarding Complainant’s performance evaluation; (d) questioning Complainant’s mental capacity; (e) timekeeping issues; (f) a disagreement over the performance evaluation of Complainant’s staff member; (g) a November 25, 2019 pay issue and revision of Complainant’s leave; (h) the removal of Complainant’s authority to approve leave in VATAS; (i) Complainant not receiving a less than outstanding rating in over 20 year; and (j) a HIPPA violation regarding a discussion of Complainant’s time. 3 On appeal, Complainant, through counsel, only disputes the Agency’s dismissal of claims 1 - 3 and not these other referenced allegations. Therefore, we will only address claims 1 - 3 in this decision. 2021001175 3 Here, a fair reading of the complaint and related EEO counseling report, as well as Complainant’s brief submitted on appeal, shows that Complainant alleged that Agency officials discriminated against and subjected her to harassment when she was made the subject of a management inquiry. As an initial matter, we do not find that the Agency’s management inquiry process constitutes an outside adjudicatory process. Complainant explained in the formal complaint that for the second time in two years, she has been subjected to a management inquiry when one of her white subordinates became “disgruntled” when changes were made within the unit. We find that Complainant is alleging that she has been subjected to a pattern of discriminatory harassment when “all of [her] white female subordinates make these false allegations when they are dissatisfied with changes or answers provided to request various requests.” We conclude that these allegations state a viable claim under the 29 C.F.R. Part 1614 EEO complaint process and should not have been dismissed. The Agency erred in dismissing this claim as a collateral attack on another adjudicatory process. Claims 2 and 3: Dismissal for Failure to Raise During EEO Counseling The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which raises a matter that has not been brought to the attention of an EEO Counselor, and is not like or related to a matter on which the complainant has received counseling. A later claim or complaint is “like or related” to the original complaint if the later claim or complaint adds to or clarifies the original complaint and could have reasonably been expected to grow out of the original complaint during the investigation. See Scher v. United States Postal Service, EEOC Request No. 05940702 (May 30, 1995); Calhoun v. United States Postal Service, EEOC Request No. 05891068 (Mar. 8, 1990). A copy of the EEO Counselor’s report, as well as the EEO Counselor’s July 17, 2020 letter officially closing the informal counseling process, indicate that Complainant only alleged that she was subjected to harassment/hostile work environment based on her age, race, and in reprisal for prior protected EEO activity when on June 9, 2020, Complainant was notified of a management inquiry filed against her. However, Complainant has provided documentation on appeal, reflecting that she discussed additional claims with the EEO Counselor before the pre-complaint process concluded. Specifically, Complainant submitted a copy of a July 1, 2020 email with the subject “FW: Earning comp time,” which she sent to the EEO Counselor. In the body of the email, Complainant wrote, “As discussed …” and Complainant forwarded a May 7, 2020 email which discussed Complainant’s authority to grant and approve comp time for employees. A copy of the EEO Counselor’s report reflects that Complainant’s initial EEO Counselor interview also occurred on July 1, 2020. Consequently, Complainant has provided documentation that she raised the claim regarding compensatory time with the EEO Counselor during the pre-complaint process and before the pre-complaint process concluded on July 17, 2020. 2021001175 4 Moreover, this claim is consistent with Complainant’s formal complaint where she alleges that on June 17, 2020, the Acting Service Chief undermined her authority and approved an employee for unlimited compensatory time to work on a project even though the employee had no knowledge or skill set to perform the project. We also address Complainant’s statements on appeal that she specifically discussed with the EEO Counselor the matter raised in claim 3. Complainant asserted that this alleged incident occurred on July 1, 2020, the same day of Complainant’s initial interview with the EEO Counselor. Given that the date of this alleged incident coincided with the date of the initial interview and given that Complainant has produced documentation demonstrating that she raised another claim that was omitted from the EEO Counselor’s report, we find, in this particular circumstance, that there is sufficient evidence to support that Complainant previously raised claim 2 during the pre-complaint process. Therefore, for the reasons discussed above, we find that the Agency’s dismissal of these two claims, pursuant to 29 C.F.R. § 1614.107(a)(2), for failure to raise during counseling was improper. CONCLUSION We REVERSE the Agency’s final decision dismissing the formal complaint on the procedural grounds discussed above. We REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER (E0618) The Agency is ordered to process the remanded claims (claims 1-3) in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. 2021001175 5 IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 2021001175 6 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint. 2021001175 7 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 March 2, 2021 Date