0120180255
02-07-2018
Thaddeus G,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Office of the Secretary of Defense), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Thaddeus G,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense
(Office of the Secretary of Defense),
Agency.
Appeal No. 0120180255
Agency No. 2017DCMO059
DECISION
Complainant timely appealed to the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's September 15, 2017, dismissal of his 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed as a Management Analyst (GS-15) in the Office of the Deputy Chief Management Officer ("ODCMO"), within the Office of the Secretary of Defense, located in Washington, D.C.
On August 22, 2017, Complainant filed a formal complaint alleging discrimination and harassment by the Agency on the bases of sex (male), sexual orientation (homosexual), and reprisal (prior protected EEO activity) when:
1. On June 5, 2017, he became aware that his suspension would be upheld by the Agency after filing an administrative grievance with Washington Headquarters Services' Labor and Management Employee Relations ("WHS/LMER") challenging the decision;
2. On April 5, 2017, WHS/LMER intentionally delayed in issuing a decision on his administrative grievance;
3. On February 8, 2017, the Agency reassigned him to a different position;
4. From January 17 to January 30, 2017, he served a two-week suspension for Conduct Unbecoming a Supervisor, which was proposed on December 14, 2015, and upheld on December 30, 2016, even though the allegation of sexual harassment by a subordinate was unsubstantiated after the investigation;
5. From December 14, 2015, to January 2017, the Agency placed him on administrative leave; and
6. On September 8, 2015, the Agency conducted an internal investigation regarding allegations that he sexually harassed a subordinate.
On September 8, 2015, the Director, Defense Business Management Analysis and Optimization Directorate ("Director") informed Complainant that one of Complainant's subordinates ("S1") had accused Complainant of sexually harassing him from May 2013 through June 2015. Complainant was then placed on indefinite suspension pending the outcome of an internal investigation on the matter.
On December 14, 2015, the investigation concluded and Complainant was issued a copy of the Report of Investigation ("ROI") and a Notice of Proposed Suspension, and provided with an opportunity to respond. According to the Director, the ROI was based on witness statements, and Management determined that Complainant had engaged in misconduct. Believing Complainant acted in inappropriately for a manager, the Director recommended Complainant's suspension to the Deputy Chief Management Officer. Complainant received an additional Notice of Proposed Suspension by the Assistant Deputy Chief Management Officer on December 30, 2016.
On January 11, 2017, Complainant challenged Management's findings and the suspension, but was unsuccessful. Complainant was issued a 14-day suspension to be served from January 17 through 30, 2017. On January 18, 2017, Complainant filed a grievance on the matter with WHS/LMER. On June 5, 2017, Complainant learned that LMER upheld the suspension.
Complainant indicates that he engaged in protected EEO activity by raising the issue of discrimination with Management and when he filed his administrative grievance. He also asserts that the evidence he provided, including witness statements that allegedly contradicted S1's account, was disregarded in the decision-making processes related to his suspension and the outcome of his administrative grievance.
The Agency dismissed the complaint, finding Claims 1 and 2 failed to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1), and the remaining claims were untimely, pursuant to 29 C.F.R. � 1614.107(a)(2).
ANALYSIS AND FINDINGS
Claims 1 and 2: Collateral Attack
Under 29 CF.R. � 1614.107(a)(1) an agency shall dismiss a complaint that fails to state a claim. This Commission has generally held that complaints involving other administrative proceedings, including those involving internal investigations or negotiated grievance procedures and related processes, do not state a claim within the meaning of its regulations. See Hogan v. Dep't of the Army, EEOC Request No. 05940407 (Sept. 29, 1994); Heard v. Dep't of Justice, EEOC Appeal No. 0120092680 (Aug. 27, 2009).
Additionally, the Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Defense, EEOC Request No. 05970596 (Jul. 30, 1998); Kleinman v. United States Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994). A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum's proceeding. See, e.g. Lingad v. United States Postal Serv., EEOC Request No. 05930106 (Jun. 23, 1994) (challenge to evidentiary ruling in grievance process fails to state a claim as an EEO complaint). For instance, an EEO complaint which alleges that discriminatory actions have been taken to influence the outcome of a decision rendered under a negotiated grievance procedure should be rejected as a collateral attack. "Except in limited circumstances, the EEO process is not an oversight mechanism for grievances." Walker v. Dep't of the Navy, EEOC Request No. 05901007 (Oct. 31, 1990); Ellis v. United States Postal Serv., EEOC Request No. 05920011 (Mar. 12, 1992).
On appeal, Complainant argues that Claims 1 and 2 fall within the limited set of circumstances allowing this Commission to address a claim regarding another administrative proceeding. Specifically, he likens his case to instances where we reversed findings of collateral attack on the grounds that "the negotiated grievance process was applied discriminatorily by the agency while the grievance decision was still within [the Agency's] control." citing Lucas-Edwards v. United States Postal Serv., EEOC Request No. 05900296 (Jun. 14, 1990) and Bellantoni v. Dep't of the Navy, Appeal No. 01983836 (Sept. 9, 1999). In both decisions, we also reasoned that the alleged discriminatory application of the grievance process "did not affect the outcome of the grievance." Complainant argues that in the instant case, WHS/LMER "applied the negotiated grievance process in a discriminatory manner" when, he was dissatisfied with the outcome of his grievance because the officials involved disregarded evidence and arguments he presented and when the processing of his grievance was significantly delayed.
Claims 1 and 2 can more accurately be compared to Malvaso v. Dep't of Defense, EEOC Appeal No. 0120110842 (May 12, 2011), and Yee v. Dep't of Justice, EEOC Appeal No. 0120081082 (Jun. 13, 2008). The complainant in Malvaso, attributed discriminatory motive to dissatisfaction with the outcome of a grievance, and raised allegations about the processing of his grievance, stating, the "grievance procedure is not transparent." In Yee, the complainant alleged that during a grievance proceeding, management officials "manipulated witnesses, suppressed evidence; provided misleading testimony; and, denied him witnesses and records for his defense." In both Malvaso, and Yee, we reasoned that the allegations constituted collateral attacks because they "involved actions inextricably intertwined with the processing and administration of complainant's grievance."
Likewise, the Agency properly dismissed Claims 1 and 2 as impermissible collateral attacks on another forum's proceeding, as their "ultimate purpose" was to seek review of decisions rendered through the negotiated grievance process. The Agency further determined that the instant complaint is an attempt to lodge a collateral attack on the internal investigation. Specifically, the Agency cited Complainant's allegations that Management's allegations were not "sufficiently thorough" and his concerns over how the evidence was evaluated. We agree with the Agency, that these allegations are "inextricably intertwined" with the internal investigative findings, and were taken in response to the ROI generated because of the internal investigation.
The proper forum for Complainant to pursue the allegations in Claims 1 and 2 is through the grievance process itself.
Claims 3 through 6: Untimely EEO Contact
In relevant part, 29 C.F.R. � 1614.107(a)(2) provides that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105. EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action.
We note that the Supreme Court of the United States held that a complainant alleging a hostile work environment will not be time barred if all acts consisting the claim are part of the same unlawful practice and at least one act falls within the filing period. See Nat'l R.R. Passenger Corp. V. Morgan, 122 S. Ct. 2061 (2002).
On appeal, Complainant does not dispute that Claim 1 is the only one of his 6 claims that identifies an alleged discriminatory act that occurred within the 45-day limitation period. However, he argues that his complaint is timely because when considered with Claim 1, his other claims are not time barred, as they comprise a single, timely allegation of harassment. See Morgan, supra. Assuming arguendo that Claims 1 through 6 could comprise a single harassment claim, the matter is still untimely because Claim 1 fails to state a claim. As such, the Agency's dismissal of Claims 3 through 6 pursuant to 29 C.F.R. �1614.107(a)(2) was appropriate.
Based on our analysis, we find it unnecessary to discuss the Agency's alternate grounds for dismissing Claims 3, 5 and 6.
CONCLUSION
Accordingly, the Agency's decision to dismiss Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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. 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 7, 2018
__________________
Date
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.
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