[Redacted], Cleo Q., 1 Complainant,v.Debra A. Haaland, Secretary, Department of the Interior (National Park Service), Agency.

Equal Employment Opportunity Commission

Apr 5, 2022

Appeal No. 2022001585 (E.E.O.C. Apr. 5, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cleo Q.,1 Complainant, v. Debra A. Haaland, Secretary, Department of the Interior (National Park Service), Agency. Appeal No. 2022001585 Agency No. DOI-NPS-21-0259 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency decision, dated December 28, 2021, dismissing 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a Captain/Watch Commander, SP 7, at the Agency’s U.S. Park Police facility in Washington, DC. On August 27, 2021, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), sex (male), and color (Black) when: 1. On June 3, 2020, Complainant was subjected to disrespectful and condescending behavior; 2. On January 22, 2021, Internal Affairs Unit (IAU) Management failed to initiate an administrative complaint when Complainant reported discourteous conduct by a Caucasian, white female Officer; however, IAU 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. 2022001585 2 management accepted and initiated an investigation when the Caucasian, white female Officer reported discourteous conduct by the Complainant; and 3. On April 8, 2021, Management issued Complainant a Letter of Counseling for discourteous conduct as result of an administrative complainant. The Agency dismissed the complaint for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1). Specifically, claim 1 was dismissed for stating the same claim that is pending before an EEOC Administrative Judge (AJ) under EEOC No. 570-2021-01379X. The Agency dismissed claims 2 and 3, reasoning that these claims concerned IAU investigation procedures and, hence, were impermissible collateral attacks against an administrative proceeding. Complainant filed the instant appeal. On appeal, regarding claim 2, Complainant contends that the Agency improperly dismissed his disparate treatment claim that IAU focused on his and not equally the Caucasian, white female Officer’s behavior during the investigation. Moreover, he argues, IAU employed discriminatory standards for accepting, investigating, and evaluating his and her respective complaints. Complainant reiterates his belief that he was treated differently when he was issued a Letter of Counseling, claim 3, and the Caucasian, white female Officer was not. The Agency submits no appellate brief. ANALYSIS AND FINDINGS Claim 1 The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that the agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission. It has long been established that “identical” does not mean “similar.” The Commission has consistently held that in order for a complaint to be dismissed as identical, the elements of the complaint must be identical to the elements of the prior complaint in time, place, incident, and parties. See Jackson v. Department of the Air Force, EEOC Appeal No 01955890 (April 5, 1996), rev'd on other grounds EEOC Request No. 05960524 (April 24, 1997). In claim 1, Complainant alleges he was subjected to disrespectful and condescending behavior on June 3, 2020. In its decision, the Agency stated that this claim is the same claim currently pending before an EEOC AJ in EEOC No. 570-2021-0379X. The Agency, however, has failed to include any documents in the instant record regarding the earlier complaint. We remind the Agency, that it has the burden of providing evidence and proof to support its final decisions. See Ericson v. Department of the Army, EEOC Request No. 05920623 (Jan. 14, 1993); Gens v. Department of Defense, EEOC Request No. 05910837 (Jan. 31, 1992). It has not done so here. 2022001585 3 Nevertheless, we take administrative notice of Commission records that reflect that Complainant’s March 12, 2021, EEO complaint (Agency Case No. NPS-21-0153) does raise the same claim set forth in claim 1. The matter is currently pending before an AJ under EEOC No. 570-2021-0379X. Therefore, claim 1 is dismissed pursuant to 29 C.F.R. 1614.107(a)(1). Claim 2 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. Dep’t of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum’s proceeding, such as the grievance process, the workers’ compensation process, an internal agency investigation, or state or federal litigation. See Fisher v. Dep’t of Def., EEOC Request No. 05931059 (July 15, 1994). Here, Complainant alleges that when a Caucasian, white, female Officer submitted a memo to IAU, alleging misconduct by Complainant, IAU accepted and processed the document as a complaint. Thereafter, IAU personnel entered the information in the Incident Management, Analysis and Reporting System (IMARS), generating an administrative complaint number. Contrastingly, when Complainant submitted a memo alleging discourteous conduct, he asserts he was required to enter his allegations of misconduct into IMARS himself, in order to generate an administrative complaint. Additionally, in his formal complaint, Complainant contends that the IAU investigation “…mostly focused on me and not equally on the actions of the Caucasian and white female.” Complainant proceeds to challenge and dispute statements provided by others to the IAU and argues that the “resulting final decisions were unfair.” The remedies identified by Complainant in his EEO complaint include: “removal of the April 8, 2021 counseling letter” and removal of the “sustained charge for Improper and Discourteous Conduct. . . .”, as well as a prohibition of any reference to the November 20, 2020 incident in assignments, corrective actions, or promotions. Therefore, despite Complainant’s contentions to the contrary, we find that he is lodging an impermissible collateral attack on the outcome of the IAU investigation. To the extent that he alleges that he suffered discrimination when he was required to fill out an online form to in order to initiate an investigation, while the female employee case information was entered by IAU personnel, he has not alleged how he was harmed by this action. Complainant himself admits that he did file an administrative complaint and that it was investigated by IAU. Such alleged action is not sufficient to dissuade a reasonable person from using the EEO process. Therefore, we find that the Agency’s dismissal of claim 2, as a collateral attack on an internal agency investigation, was proper. 2022001585 4 Claim 3 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 Agency reasoned that the action in claim 3 also constituted a collateral attack on an internal process. Complainant alleges that he was discriminated against when he was issued a Letter of Counseling, a disciplinary action, that concerns a personal loss or harm to a term, condition, or privilege of employment. Therefore, we find that claim 3 was improperly dismissed for failure to state a claim. CONCLUSION The Agency’s decision to dismiss claims 1 and 2 was proper and is hereby AFFIRMED. The dismissal of claim 3 was improper and is hereby REVERSED. Claim 3 is REMANDED to the Agency in accordance with the Order below. ORDER (E0618) The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claim within thirty (30) calendar days of the date this decision was issued. 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 was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. 2022001585 5 IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. 2022001585 6 A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2022001585 7 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 April 5, 2022 Date