0120110842
05-12-2011
_________________, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Intelligence Agency), Agency.
_________________,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Intelligence Agency),
Agency.
Appeal No. 0120110842
Agency No. DIA-2010-00056
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
final decision 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 worked as a Management Analyst,
PB-4, at the Agency’s Directorate for Information Systems in Washington,
DC.
On July 15, 2010, Complainant contacted the EEO office, claiming that
he was the victim of unlawful employment discrimination on the basis of
sex (male). Informal efforts to resolve Complainant’s concerns were
unsuccessful. On August 6, 2010, Complainant filed a formal complaint.
On August 25, 2010, the Agency issued a final decision dismissing the
complaint. In its decision, the Agency framed five claims as follows:
1. In October 2009, Complainant was directed to lower the performance
evaluation rating for a subordinate in "communication" to a "2" and
refused. Complainant then received a "2" in communication on his November
6, 2009 evaluation.
2. On November 6, 2009, Complainant received his performance evaluation,
which contained unfair language and ratings.
3. In March and/or April 2009, management refused to provide training
funds to Complainant’s branch.
4. On April 1, 2010, Complainant received a letter from Human Capital
(personnel) regarding his grievance on his performance evaluation stating
his evaluation would not be changed.
5. On July 7, 2010, [Complainant] met with a Human Capital employee
to discuss the April 1, 2010 grievance response, and learned that the
evaluation grievance procedure was not transparent.
The Agency dismissed claims (1) through (4) on the grounds of untimely EEO
Counselor contact. The Agency determined that Complainant waited beyond
the forty-five day time limitation when he first sought EEO counseling
on July 15, 2010, regarding the alleged discriminatory events in claims
(1) - (4). The Agency noted that Complainant was requested to provide
an explanation for the delay in contacting an EEO Counselor, and he
responded that he was waiting for Human Capital to provide a response to
his grievance. The Agency further noted that Complainant was aware of
the EEO process, including the 45-date time limit, because he attended
Equal Employment Opportunity (EEO) training on June 18, 2009, and again
in April 15, 2010.
The Agency also dismissed claims (4) and (5) for failure to state a claim,
finding that it was a collateral attack on the grievance process.
CONTENTIONS ON APPEAL
On appeal, Complainant did not dispute the Agency’s assertion in its
final decision that Complainant was aware of the time limit for contacting
an EEO Counselor. Complainant, however, indicates on appeal that the
reason his EEO Counselor contact was untimely is because he was waiting
for the results of the grievance process.
The Agency requests that the Commission affirm its final action.
ANALYSIS AND FINDINGS
Claims (1) through (4)
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints
of discrimination should be brought to the attention of the Equal
Employment Opportunity Counselor within forty-five (45) days of the
date of the matter alleged to be discriminatory or, in the case of
a personnel action, within forty-five (45) days of the effective
date of the action. In the instant case, the last discriminatory
event in claims (1) - (4) occurred on April 1, 2010, but Complainant
did not initiate contact with an EEO Counselor until July 15, 2010,
beyond the forty-five-day limitation period. On appeal, complainant
argues that he attempted to resolve the claims through management and
only initiated EEO Counselor contact after he received a decision on
his grievance. Complainant’s reliance on management to resolve his
concerns regarding the alleged discriminatory incidents does not excuse
an untimely EEO Counselor contact. The Commission has consistently
held that the utilization of agency procedures, union grievances, and
other remedial processes does not toll the time limit for contacting an
EEO Counselor. See Ellis v. United States Postal Service, EEOC Appeal
No. 01992093 (November 29, 2000). Therefore, we find that complainant
failed to provide sufficient justification for waiving or tolling the
time limitation. Accordingly, claims (1) through (4) were properly
dismissed for untimely EEO Counselor contact.
Because we affirm the dismissal of Claim 4 for the reason stated herein,
we will not address alternative dismissal grounds relating to that claim.
Claim (5)
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). Except in very limited
circumstances, the EEO process is not a mechanism to attack negotiated
grievance procedures. Ellis v. United States Postal Service, EEOC Request
No. 05920011 (March 12, 1992).
Claim (5) represents a collateral attack on the grievance process.
In claim (5), Complainant expresses his dissatisfaction with the
outcome of his grievance and alleges the “grievance procedure is not
transparent.” The proper forum for Complainant to have raised his
challenges to actions which occurred during the grievance proceeding
was within that proceeding itself. It is inappropriate to now attempt
to use the EEO process to collaterally attack actions which occurred
during the grievance process. The Commission finds that the Agency
properly dismissed claim (5) for failure to state a claim.
CONCLUSION
Accordingly, the Commission AFFIRMS the Agency’s dismissal of
Complainant’s complaint.
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
May 12, 2011
__________________
Date
2
0120110842
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110842