[Redacted], Ward B., 1 Complainant,v.Lloyd J. Austin, III, Secretary, Department of Defense (Defense Commissary Agency), Agency.

Equal Employment Opportunity Commission

Feb 2, 2021

Appeal No. 2021000869 (E.E.O.C. Feb. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ward B.,1 Complainant, v. Lloyd J. Austin, III, Secretary, Department of Defense (Defense Commissary Agency), Agency. Appeal No. 2021000869 Agency No. 00183-2020 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated October 19, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the relevant time, Complainant worked as a Store Director, GS-13, at the Agency’s Kadena Air Base Commissary in Okinawa, Japan. On October 8, 2020, Complainant filed a formal EEO complaint claiming that the Agency discriminated against him based on race, sex, disability, age, and in reprisal for prior protected EEO activity when: 1. in April of 2020, Complainant became aware that his reclassification request (upgrade from GS-13 to GS-14) was denied; 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. 2021000869 2 2. on September 9, 2020, Complainant became aware that his request to reverse the March 2020 reclassification denial was also denied. On October 19, 2020, the Agency dismissed the complaint asserting it constituted a collateral attack on the Office of Personnel Management (“OPM”) position classification process.2 The Agency determined that this matter was outside of the Commission's jurisdiction and should have been raised with OPM. The instant appeal followed. ANALYSIS AND FINDINGS 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). 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, not an outside adjudicatory body, were motivated by discriminatory and retaliatory animus when denying his request to upgrade his GS-13 position to a GS-14. Specifically, Complainant alleged that while other commissary managers not of his protected classes were upgraded to GS-14 due to increased sales, his request for an upgrade was denied by Agency officials despite his store’s similar increase in sales. There is no argument by the Agency that anyone other than Agency officials were involved in the decision-making process at issue. Complainant further alleged that he believes the denial by Agency officials was further motivated by the fact that he had successfully prosecuted a prior EEO complaint against management and, as a consequence, management was determined not to change his grade to a GS-14. 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. It is undisputed that Complainant could have also appealed the Agency’s denial through the Office of Personnel Management (OPM) classification appeals process. However, the Agency has not cited to any authority to indicate that an appeal to OPM was Complainant’s exclusive remedy.3 2 While the Agency cited to 29 C.F.R. § 1614.107(a)(4) as the authority for the dismissal, we clarify that 29 C.F.R. § 1614.107(a)(1) (failure to state a claim) is the appropriate authority to dismiss a claim as a collateral attack. 3 As compared, for example, to a complaint challenging an agency's actions under the Debt Collection Act. This statute mandates that monetary disputes involving an agency of the United 2021000869 3 Accordingly, we conclude that the Agency erred in dismissing the complaint as an impermissible collateral attack and hereby REVERSE the dismissal and REMAND the complaint for further action pursuant to the following Order. ORDER (E1016) The Agency is ordered to process the remanded claims 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. A copy of the Agency’s letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below. 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. States government and any claimed debtor must be resolved through the provisions of the Debt Collection Act. As such, the Commission has previously held that challenges to agency's actions under the Debt Collection Act are not within the scope of the EEO complaint process. Baughman vs. Department of Army, EEOC Appeal No. 01900865 (February 26, 1990); Amato v. Department of the Army, EEOC Request No. 0520070240 (July 18, 2007). 2021000869 4 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. 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. 2021000869 5 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. 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 February 2, 2021 Date