0120090890
08-12-2010
Carolyn E. Wallace, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Carolyn E. Wallace,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120090890
Agency No. 7Q1L08002
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated November 5, 2008, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the Agency properly dismissed Complainant's complaint.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Flight Management Clerk, GS-4, for the 18 Air Refueling Squadron at the Agency's McConnell Air Force Base in Kansas. Formal Complaint, at 1. Complainant retired from her position effective August 31, 2008. Agency's Appeal Brief, Attachment 1.
On June 3, 2008, Complainant contacted an EEO Counselor. EEO Counselor's Report, at 1. On July 28, 2008, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), sex (female), and age (57). Formal Complaint, at 1.
In its November 5, 2008 final decision, the Agency defined Complainant's complaint as encompassing the following claims:
1. between 1997 and May 21, 2008, she was subjected to a hostile work environment1 which forced her to apply for early retirement when:
a. on April 8, 2008,2 a Commander Directed Investigation (CDI) into a complaint she made that a co-worker (CW1) committed illegal acts was not properly conducted in that all witnesses were not interviewed, all facets of the complaint were not investigated, and the investigator was biased3;
b. between August 2007 and September 2007, she heard CW1 say, "She better hope she doesn't go to Turkey with me," and "I just better not catch her alone" about another co-worker (CW2), and that prior to discovering that the victim of the alleged threat was CW2 and not herself, the Group Commander refused to take any action;
c. on several occasions, the latest occurring on April 8, 2008,4 her requests to be reassigned from her supervisor (S1) were denied;
d. on or around December 5, 2006, CW1 was allowed to sabotage her work by shredding documents, taking work off of her desk, and removing files;
e. on June 17, 1998, she was denied training opportunities for computer classes, which affected her chances of being promoted to Flight Management Clerk, GS-0303-07, or its equivalent; and
2. on April 8, 2008, a CDI into her complaints of alleged criminal activities by CW1 was not properly conducted.5
The Agency dismissed the entirety of Complainant's complaint for untimely EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2). Agency's November 5, 2008, Final Decision (FAD), at 1. The Agency found that, because Complainant did not contact an EEO Counselor until June 3, 2008, even though she was aware of the alleged discriminatory acts on April 8, 2008, her contact did not fall within the 45-day time limit required by 29 C.F.R. � 1614.105(a)(1). Id. at 1-2. The Agency also individually dismissed claim 2 for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1), because it did not allege an act of employment discrimination prohibited by federal civil rights statutes. Id. at 2. Specifically, the Agency found that Complainant did not allege that she suffered any personal loss or harm as a result of an Agency action affecting the terms, conditions, or privileges of her employment. Id.
CONTENTIONS ON APPEAL
On appeal, Complainant asserts that the Agency erred in defining her claims. Complainant's Appeal Brief, at 2-6.6 Regarding claim 1a, Complainant clarifies that the initial meeting with the CDI investigator occurred on April 4, 2008, not on April 8, 2008. Id. at 2. Regarding claim 1b, Complainant notes that she did not state that the Group Commander refused to take any action. Id. at 3. Regarding claim 1c, Complainant asserts that she was denied reassignment over many years, not just on several occasions. Id. Regarding claim 1d, Complainant argues that the packet of documentation she submitted to the EEO Counselor referenced many separate incidents of sabotage involving CW1, but the Agency addressed only the December 5, 2006, incident. Id. Regarding claim 1e, Complainant clarifies that S1 denied her other training opportunities, not computer classes, and that she never specified a date for the denial of those training opportunities. Id.
In addition, Complainant asserts that the Agency erred in finding that her EEO Counselor contact was untimely in claims 1 and 2 and in finding that she failed to state a claim in claim 2. Id. at 4-6. Regarding her EEO Counselor contact, Complainant asserts that it was timely because she learned of the CDI decision on May 21, 2008, not on April 8, 2008. Id. at 4. Complainant explained that, although she wanted to file an EEO complaint on April 8, 2008, because she felt that the CDI would not be in her favor after meeting with the CDI investigator, she decided to wait until after the Squadron Commander made the final decision on May 21, 2008. Id. Regarding the Agency's statement that she had not suffered any personal loss or harm as a result of its actions in claim 2, Complainant asserts that she has suffered many health and emotional problems as a result. Id. at 5-6.
In response, the Agency requests that we affirm its dismissal of Complainant's complaint because it was both untimely and failed to state cognizable claims. Agency's Appeal Brief, at 3-5. First, the Agency argues that the CDI was not itself a personnel action or other employment practice that caused Complainant to be aggrieved. Id. at 3. Next, the Agency argues that Complainant should not have relied on the CDI to address her EEO claims because the CDI was not an EEO investigation and, therefore, the conclusion of the CDI was not an appropriate triggering event for her EEO claim. Id. In addition, even assuming for the sake of argument that the CDI could serve as a triggering event for Complainant's EEO complaint, the Agency argues that her contact with the EEO Counselor was still untimely. Id. The Agency argues that Complainant knew by April 8, 2008, as evidenced by the CDI investigator's April 8, 2008 report of investigation and her own July 7, 2008, memorandum describing the events on or around April 8, 2008, that the CDI had not substantiated her allegations and had not addressed her allegations in the detail she considered necessary or appropriate. Id. at 4. Further, the Agency argues that the other alleged discriminatory events in claim 1 occurred over a number of years, the latest in 2006 and 2007. Id. Finally, the Agency argues that the record does not indicate that management requested or recommended to Complainant that she defer the filing of her EEO complaint until the CDI concluded. Id. The Agency notes that, to the contrary, Complainant acknowledges on appeal that she wanted to file an EEO complaint on April 8, 2008, but was dissuaded from doing so by her union representative. Id.
ANALYSIS AND FINDINGS
Standard of Review
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Ch. 9, � VI.A. (Nov. 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). We note that, for the sake of clarity, we address claim 2 prior to claim 1.
Claim 2 - Commander Directed Investigation
Complainant alleged that the CDI was flawed because the complaint she filed regarding the illegal actions of CW1 was not properly investigated and the CDI investigator was biased. Formal Complaint, at 2-3. Upon review, we find that claim 2 constitutes a collateral attack on the CDI process. The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Defense, 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). Thus, Complainant cannot use the EEO process to collaterally attack the CDI which investigated her complaint alleging the improper destruction of records, inappropriate or unprofessional behavior by employees, and failures of management to address job performance issues. The proper forum for Complainant to have raised her challenges to actions which occurred during the CDI process is within that proceeding itself. As such, we affirm the Agency's dismissal of claim 2 for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
Claim 1 - Harassment
Complainant alleged a claim of hostile work environment harassment and cited five examples (claims 1a - 1e) of harassment. Formal Complaint, at 2-3. As we have affirmed the Agency's dismissal of claim 2, and claim 1a is substantively identical to claim 2, we now address Complainant's claim of harassment based on claims 1b - 1e.
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides, in pertinent part, that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in � 1614.105, unless the agency extends the time limits in accordance with � 1614.604(c). EEOC Regulation 29 C.F.R. � 1614.105(a)(1) provides, in pertinent part, that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory. A complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002).
As Complainant initiated contact with an EEO Counselor on June 3, 2008, the latest act constituting Complainant's claim of harassment had to occur on or after April 19, 2008 in order to fall within the 45-day time limit. See 29 C.F.R. � 1614.105(a)(1). The record shows that the latest act constituting Complainant's claim of harassment, claim 1c, occurred on April 8, 2008. FAD, at 1. Although Complainant on appeal disputes the dates that the Agency listed for claims 1d and 1e, she does not provide corrected dates. Complainant's Appeal Brief, at 3. A review of the documentation that Complainant submitted, both as part of her formal complaint and on appeal, does not indicate that any of the incidents of sabotage by CW1 or the denial of training opportunities by S1 occurred on or after April 19, 2008. As such, we affirm the Agency's dismissal of claim 1 for untimely EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2).
CONCLUSION
Accordingly, the Commission AFFIRMS the Agency's final decision dismissing 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
August 12, 2010
Date
1 In a July 28, 2008 statement submitted as part of her formal complaint, Complainant listed several examples of the alleged harassment. Formal Complaint, at 1-2. Complainant did not include dates in many of those examples, but did submit almost 200 pages of documentation as part of her formal complaint. Id. It appears that the Agency used the content of Complainant's submissions to try to clarify and provide dates for all of her examples.
2 Complainant alleged that she was informed of the outcome of the investigation on May 21, 2008 and listed May 21, 2008 as the incident date on her formal complaint. Formal Complaint, at 1-2.
3 The scope of the CDI was limited to the 18 Air Refueling Squadron flight records management section as to the improper destruction of records, inappropriate or unprofessional behavior by the members assigned to the section, and failures of management to address issues involving job performance within the section. Formal Complaint, April 8, 2008 Commander Directed Report of Investigation, at 2.
4 Complainant did not specify in her formal complaint the date that her requests to be reassigned were denied. Formal Complaint, at 2. However, the Agency appears to have assumed that the latest date was April 8, 2008, the date the CDI report of investigation was issued, because Complainant characterized the CDI as the "last incident" and the "final straw" in her harassment claim. Id.
5 Although the Agency used slightly different language in describing claim 2 and claim 1a, we note that the claims are substantively identical. Complainant alleged that the CDI itself was both a separate claim of discrimination and the "final straw" in the hostile work environment that she experienced for eleven years. Formal Complaint, at 2.
6 Complainant's Appeal Brief refers to Complainant's six-page undated statement titled, "Subject: Notice of Appeal/Petition." Complainant also submitted over 250 pages of documentation, much of which she originally submitted as part of her formal complaint.
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0120090890
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090890