0120121639
07-20-2012
Dora M. McFadden, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Dora M. McFadden,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120121639
Agency No. ARFTHUA12JAN00067
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated February 8, 2012, 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.
BACKGROUND
At the time of events giving rise to this complaint Complainant worked as a Senior Technical Writer/Editor at the Agency's US Army Material Command, Communications-Electronics Command, Communication Security Logistics Activity at Fort Huachuca in Arizona. She filed a formal complaint dated January 30, 2012, alleging that she was discriminated against based on her sex (female) and reprisal for prior protected equal employment opportunity (EEO) activity regarding the processing of a prior complaint.
Specifically, Complainant filed prior complaint ARFTHUA11MAY01925 in June 2011, which was accepted for investigation.1 The investigation included a fact-finding conference on October 2, 2011, where witnesses were questioned by the investigator. The Agency attorney representative and Complainant were given opportunities to question witnesses. In the complaint before us Complainant alleges that she was discriminated against when she learned on September 13, 2011, that her witnesses got an e-mail from the Fort Huachuca Equal Employment Opportunity (EEO) Specialist/Complaints Manager to contact the Agency attorney representative for "pre-investigation preparation" and they were then interviewed. Complainant believed this tainted the investigation.
According to the counselor's report the Agency's attorney representative stated the following. All witnesses were also Agency witnesses, so she had a right to question them on Complainant's allegations. She met with them to discuss the investigative process and inquire about their knowledge of the allegations. The witnesses are federal employees and are required to cooperate with the EEO process.2
Upon learning about the September 2011 e-mail to her witnesses Complainant sent an e-mail to the EEO investigator expressing her concern about it. The matter was elevated, and by letter to Complainant dated September 28, 2011, the Fort Huachuca EEO Officer who heads its EEO office advised she determined that the complaint processing met the requirements of applicable regulations, and if her concerns were not resolved she should raise them after the completion of the investigation with an EEOC Administrative Judge should she request a hearing. The EEO Officer wrote that her letter and Complainant's e-mail would become part of the official complaint file.
The Agency dismissed the complaint for alleging dissatisfaction with the processing of a previously filed EEO complaint. 29 C.F.R. � 1614.107(a)(8). In the FAD the Agency also advised Complainant that because she did not ask for a hearing in her prior complaint she could raise her concerns with the EEOC on appeal. Complainant did so on appeal in EEOC Appeal No. 0120122405.
On appeal Complainant argues that the conduct of the EEO Specialist/Complaints Manager and Agency attorney representative would dissuade employees from participating in an EEO complaint.
In opposition to the appeal the Agency argues that the Agency attorney representative acted appropriately in that she was simply trying to prepare for the fact-finding conference, and the complaint was properly dismissed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(8) provides for the dismissal of a complaint that alleges dissatisfaction with the processing of a previously filed complaint. Because Complainant's complaint alleges dissatisfaction with the conduct of the EEO investigation in a prior complaint, the Agency properly dismissed her complaint under the above regulation. Moreover, the Agency complied with Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 5-25 to 5-26 (Nov. 9, 1999) by putting an explanation in the record of the underlying complaint on its decision not to take action on Complainant's concern. Also, the Agency ultimately notified Complainant that she could raise her concerns within the context of her underlying case before the EEOC, and she did so.
CONCLUSION
The FAD 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
July 20, 2012
__________________
Date
1 Some of the information herein was gleaned from the pending appeal of McFadden v. Army, EEOC Appeal No. 0120122405, which is from the Agency's decision on the prior complaint.
2 The Agency attorney representative indicated one witness who retired did not contact her.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120121639
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121639