Earl F.v.Fed. Commc’n Comm’n.

Equal Employment Opportunity Commission

Sep 3, 2020

EEOC Appeal No. 2020002332 (E.E.O.C. Sep. 3, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Earl F,1
Complainant,

v.

Ajit V. Pai,
Chairman,
Federal Communications Commission,
Agency.

Appeal No. 2020002332

Agency No. FCC-EEO-19-01

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated November 19, 2019, 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., 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

At the time of events giving rise to this complaint, Complainant was a retired Electronics Engineer
at the Agency’s Office of Engineering and Technology facility in Washington, D.C.

On August 6, 2019, Complainant filed a formal complaint alleging that the Agency subjected her
to discrimination on the bases of race (Asian), national origin (Chinese), sex (female), disability,
age, and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964
when:

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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1. in April 2019, the U.S. Court of Appeals for the District of Columbia denied the
Complainant’s petition for writ of certiorari because it relied upon false and
concealed material facts proffered by the FCC Chairman in her prior 2016 court
proceeding against the Agency; and

2. on unspecified dates, the FCC chairman failed to resolve the Complainant’s prior
complaints of discrimination, while resolving those of other employees.

The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state
a claim. The instant appeal followed.

ANALYSIS AND FINDINGS

Claim 1

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.
Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).

The Commission has held that an employee cannot use the EEO complaint process to lodge a
collateral attack on another adjudicatory 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). In her complaint, Complainant alleged discrimination related to a
court’s denial of her writ of certiorari. The EEO process is not the proper forum for Complainant
to have raised this challenge. Any issues related to a court matter must be raised with the court
itself and not through the EEO complaint process.

Claim 2

To the extent that Complainant is alleging in the current complaint that her other complaints were
not properly processed, we also agree that it does not state an independent claim of discrimination.
We find it is appropriately viewed as a “spin-off complaint” subject to dismissal under 29 C.F.R.
§ 1614.107(a)(8). Complainant should raise any claims regarding the processing of a complaint
with the Agency’s EEO program or that complaint’s adjudicators, and not as a new complaint. See
EEOC’s Management Directive (MD)-110) at 9-16 (2015). If a final agency decision has already
been issued on an underlying complaint where a complainant has an issue with its processing, he
or she may also raise the concerns in an appeal.

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Accordingly, the Agency's final decision dismissing 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.
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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

September 3, 2020
Date