0120161827
10-13-2016
Delphia F.,1 Complainant, v. Eric K. Fanning, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Delphia F.,1
Complainant,
v.
Eric K. Fanning,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120161827
Agency No. AREUKAI13APR01552
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated July 18, 2013, 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.
BACKGROUND
During the period at issue, Complainant was employed as a Psychiatrist at the Agency's Landstuhl Regional Medical Center (LRMC) in Germany from January 15, 2012 to June 4, 2012. Before and after Complainant's employment with LRMC, Complainant worked at the Agency's Brook Army Medical Center (BAMC) in San Antonio, Texas.
On April 18, 2013, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On May 30, 2013, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency subjected her to discrimination on the bases of race, national origin, sex, and in reprisal for prior EEO activity under when:
a. on an unspecified date, she was denied an investigation into concerns she expressed regarding workplace improprieties, mismanagement, abuse of authority and concerns that related to patient health and safety, false statements and a hostile work environment at the US Army Health Clinic, Baumholder, Germany (USAHC-Baumholder Clinic);
b. on unspecified dates, she reapplied for employment at USAHC-Baumholder Clinic and was denied selection to unspecified positions under unspecified announcements;
c. on an unspecified date, she filed a formal EEO complaint (Agency No. AREUBAUM12APR01321) and was denied an investigation and a copy of the Report of Investigation;
d. on February 21, 2013, she was denied restatement to the position she held, Medical Officer (Psychiatry), GS-0602-14, between January 2012 and April 2012, located at USAHC-Baumholder Clinic; and
e. on March 7, 2013, her representative submitted a Freedom of Information (FOIA) request for public records regarding her with response pending.
The record reflects that on April 4, 2012, Complainant filed a formal EEO complaint at the Agency's Baumholder, Germany facility. On April 20, 2012, Complainant withdrew her complaint by informing the EEO office that her issue was resolved in her favor. Ten months later, on February 18, 2013, Complainant wrote to the LRMC Commander requesting reinstatement to her position as a Psychiatrist with LRMC. On March 1, 2013, the LRMC Commander declined Complainant's request. During the time of her reinstatement request, Complainant was employed at the BAMC which she remains at the present time.
In its August 7, 2015 final decision, the Agency dismissed claims a - c and e for failure to pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim finding that Complainant was not aggrieved. The Agency also dismissed claims a and b for failure to cooperate, pursuant to 29 C.F.R. � 1614.107(a)(7). Specifically, the Agency determined that the EEO office sent Complainant a written request to provide relevant information concerning her complaint, informing her that failure to respond within 5 days of receipt could result in the dismissal of the claims but that a response was never sent to the Agency.
Further, the Agency dismissed claim d on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency determined that Complainant's initial EEO Counselor contact was on April 18, 2013, which it found to be beyond the 45-day limitation period.
The instant appeal followed.
ANALYSIS AND FINDINGS
Claim c
While the Agency dismissed claim c for failure to state a claim because she was not aggrieved, we find that it is more properly analyzed as whether it is a spin off complaint (Agency No. AREUBAUM12APR01321). EEOC Regulation 29 C.F.R. � 1614.107(a)(8) provides that an agency shall dismiss claims alleging dissatisfaction with the processing of a prior complaint. Dissatisfaction with the EEO process must be raised within the underlying complaint, not a new complaint. See EEOC Management Directive 110 (as revised Nov. 9, 1999) 5-23, 5-25 to 5-26. A review of the record reveals that the instant complaint focuses on Complainant's dissatisfaction with the processing of her prior complaint. Complainant must raise this matter with the Agency official responsible for compliant processing (as opposed to filing a new complaint). The Agency official will conduct an inquiry ad issue Complainant a determination on the matter, with appeal rights to the Commission. Therefore, we find that the Agency properly dismissed claim c pursuant to 29 C.F.R. � 1614.107(a)(8).
Claim e
We determine that claim e constitutes a collateral attack on another proceeding. See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v. U.S. Postal Service, EEOC Request No. 05930106 (June 24, 1993). The proper forum for Complainant to have raised her challenges to actions which occurred during FOIA process is within that process itself. It is inappropriate to now attempt to use the EEO process to collaterally attack actions which occurred through the FOIA process. Therefore, we affirm the Agency's dismissal of claim e.
Claims a and b (failure to state a claim)
The Agency improperly dismissed claims a and b for failure to state a claim. The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Contrary to the manner in which the formal complaint was identified in the final decision, the instant formal complaint and EEO Counselor's Report reflect a more detailed series of alleged incidents. These incidents include various matters relating to Complainant purportedly being harassed by her supervisors at USAHC-Baumholder Clinic. For instance, Complainant stated that when she reported her concerns about USAHC-Baumholder Clinic improprieties related to medical protocols and patient safety, she was subjected to a hostile work environment.
Complainant, on appeal, argues that she is subjected to ongoing harassment. Specifically, Complainant states that when she transferred back to BAMC "as a temporary measure to allow the investigation to occur, for corrective action to be taken and to recover from the psychological injuries she suffered as a result of how she was treated. She was assured that the hostility and mismanagement would be investigated and corrected. There is a real doubt that that ever occurred."
As a remedy, Complainant requested to be reinstated to her Psychiatrist position at USAHC-Baumholder Clinic and compensatory damages. By alleging a pattern of harassment, Complainant has stated a cognizable claim under the EEOC regulations. See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993).
Claims a and b (failure to cooperate)
The Commission has held that an Agency should not dismiss a complaint when it has sufficient information upon which to base an adjudication. See Ross v. United States Postal Service, EEOC Request No. 05900693 (August 17, 1990); Brinson v. United States Postal Service, EEOC Request No. 05900193 (April 12, 1990). It is only in cases where the Complainant has engaged in delay or contumacious conduct and the record is insufficient or permit adjudication that the Commission has allowed a complaint to be dismissed for failure to cooperate. See Card v. United States Postal Service, EEOC Request No. 05970095 (April 23, 1998); Kroten v. United States Postal Service, EEOC Request No. 05940451 (December 22, 1994).
The record contains no evidence that Complainant engaged in delay or contumacious conduct in regard to the processing of the instant complaint. The record reflects that Complainant's attorney acknowledged receiving the Agency's letter dated June 3, 2013 requesting additional information on July 5, 2013. The attorney further stated that on July 12, 2013, he sent an email to the EEO office with supporting documentation.
Moreover, a review of the instant formal complaint indicates that Complainant provided sufficient information to the EEO Counselor about her allegations of discrimination. Specifically, Complainant alleged that she was discriminated against by her supervisors at USAHC-Baumholder Clinic. The record further reflects the reasons Complainant felt that she was discriminated against and contains specific information regarding the discriminatory actions, the name of the alleged discriminatory official, and the corrective action sought.
Therefore, we find that the Agency should have completed its investigation of the instant formal complaint and allowed for a decision on the merits rather than dismissing claims a and b for failure to cooperate. Furthermore, Complainant is advised to cooperate in the further processing of these claims, or face possible dismissal for failure to cooperate, if she does not do so.
Claim d (EEO Counselor contact)
The Agency also improperly dismissed claim d on the grounds of untimely EEO Counselor contact. Complainant initiated EEO Counselor contact on April 18, 2013. The Commission has held that "[b]ecause the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable, as long, as at least one incident that is part of the claim occurred within the filing period. This includes incidents that occurred outside the filing period that the [Complainant] knew or should have known were actionable at the time of their occurrence." EEOC Compliance Manual, Section 2, Threshold Issues at 2 - 75 (revised July 21, 2005) (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)).
The various incidents comprising Complainant's hostile work environment claim occurred within the 45-day time period preceding Complainant's April 18, 2013 EEO Counselor contact, as discussed above. Because a fair reading of the record reflects that the matter identified in claim d is part of that harassment claim, we find that the Agency improperly dismissed this claim on the grounds of untimely EEO Counselor contact.
The Agency's final decision dismissing claims c and e is AFFRMED. However, we REVERSE the Agency's final decision dismissing claims a, b and d, defined herein as a harassment/hostile work environment claim, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process claims a, b and d (harassment/hostile work environment) in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claim within thirty (30) calendar days of the date this decision becomes final. 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 becomes final, unless the matter is otherwise resolved
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 (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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.
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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
October 13, 2016
__________________
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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