0120101070
08-04-2011
Vicki E. Miller, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, (Federal Highway Administration), Agency.
Vicki E. Miller,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
(Federal Highway Administration),
Agency.
Appeal No. 0120101070
Agency No. 200922918FHWA02
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated December 14, 2009, 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.
Upon review, the Commission finds that Complainant's complaint was
properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely
EEO Counselor contact.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Transportation Specialist at the Agency’s Federal Highway
Administration (FHWA) Office of Asset Management in Washington, DC.
In December 2008, Complainant applied for the position of Supervisory
Transportation Specialist. Complainant’s application included a resume
that was incomplete, providing insufficient information with which to
verify her work experience. Subsequently, Complainant was notified
that her application was disqualified. Complainant pursued redress
through the Agency’s negotiated grievance process on March 12, 2009.
Her grievance was denied in April 2009. Complainant appealed the decision
to the Agency’s Director of Human Resources and her appeal was denied
on August 10, 2009.
On November 30, 2009, Complainant filed a formal complaint alleging
that the Agency subjected her to discrimination on the bases of her race
(African-American) and sex when her application was not considered for the
position of Supervisory Transportation Specialist. The Agency dismissed
Complainant’s complaint for untimely EEO Counselor contact pursuant
to 29 C.F.R. § 1614.107(a)(2). On appeal, Complainant contends that
the Agency misrepresented her claim, and that the discriminatory event
at issue in the instant complaint is not the disqualification of her
application, but instead the way in which her grievance was investigated.
ANALYSIS AND FINDINGS
While the Agency dismissed the instant complaint for untimely EEO
Counselor contact, we find that the complaint is more properly dismissed
pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim
as it constitutes an impermissible collateral attack on the grievance
process. Specifically, in her formal complaint, Complainant states
that the “discriminatory event” at issue is the “grievance appeal
response letter dated August 10, 2009,” which Complainant reiterates
in her brief on appeal.
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. See Wills
v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998);
Kleinman v. United States Postal Service, EEOC Request No. 05940585
(September 22, 1994); Lingad v. United States Postal Service, EEOC Request
No. 05930106 (June 25, 1993). The proper forum for Complainant to have
raised her challenges to actions which involve the grievance proceedings
is within that proceeding itself. It is inappropriate to now attempt
to use the EEO process to collaterally attack actions related to the
grievance process.
To the extent Complainant is ultimately alleging the non-selection
was non-discriminatory, we agree with the Agency’s conclusion that
Complainant failed to contact an EEO Counselor and the complaint is
properly dismissed on those grounds.
CONCLUSION
Accordingly, the Agency’s final decision dismissing Complainant’s
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 or within twenty (20) calendar days of
receipt of another party’s timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. 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 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the
request and the civil action must be filed within the time limits as
stated in the paragraph above (“Right to File A Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 4, 2011
__________________
Date
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0120101070
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101070