0120140692
04-01-2014
Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120140692
Agency No. ARSHAFTER13AUG02944
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated November 4, 2013, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Attorney Advisor at the Agency's Tripler Medical Center in Honolulu, Hawaii.
On October 21, 2013, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency subjected her to discrimination on the bases of sex, age, and in reprisal for prior EEO activity when:
on August 1, 2013, the Lieutenant Colonel placed her on Administrative Leave due to an AR 15-6 investigation being conducted.1
On November 4, 2013, the Agency issued a final decision. The Agency dismissed the formal complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. Specifically, the Agency determined that Complainant's participation as a witness in an administrative fact-finding process did not constitute unlawful discrimination, and that Complainant did not identify any changes to her working conditions that occurred as a result of the investigation.
Further, the Agency found that the formal complaint is a collateral attack on the AR 15-6 investigative process. The Agency stated that Complainant should have raised her allegations through the AR 15-6 investigative process, not through the EEO process.
The instant appeal followed.
ANALYSIS AND FINDINGS
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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
As a preliminary matter, we note that in the instant final decision, the Agency has characterized Complainant's formal complaint as relating to Complainant's participation as a witness in an investigatory proceeding, and that she had not been rendered aggrieved. In contrast, Complainant raises the following matter in the formal complaint. She claims that she was subjected to a hostile work environment by Agency management based on her prior protected activity after she complained to management about workplace violence. Complainant stated that on July 8, 2013, she and the Agency entered in a settlement agreement in which the Agency agreed to provide her a meaningful evaluation of May 2012-May 2013, investigate her evaluation for the period of May 2010-May 2011, and let her know the outcome of the AR 15-6 investigations pertaining to her.
Complainant states that following the signing of the above referenced agreement, on July 24, 2013, her supervisor provided her with a memorandum of formal notice that the AR 15-6 investigations pertaining to her had been closed without action. The July 24, 2013 memorandum also referenced the "assessment plan to be implement toward restoring your access to Quality Assurance related activities and information" as set out in the May 28, 2013 Memorandum Counseling. Complainant stated at that time "I was pleased and frankly optimistic that the discrimination and hostile workplace that had existed for so long seemed to be coming to a close. However, I was wrong. One week later, on 1 Aug 2013, [supervisor] called me into his office and told me although the 2010 and 2011 investigation had been closed without action, the new [MEDCOM Staff Judge Advocate] had notified him of his intent to open yet another investigation of me [emphasis in its original]." Complainant stated that she asked her supervisor "what I was alleged to have done this time, and he said he did not know." Complainant states that she was placed on administrative leave immediately. Complainant states that during the investigative interview, she was informed by the investigator that "I was accused of poor job performance and misconduct."
Complainant states "the Agency's latest AR-15 investigation of me, alleging 'poor job performance' and 'misconduct,' constitutes reprisal for my request in settlement of my EEO claim for a meaningful performance evaluation and investigation of a falsified evaluation. The threat of disciplinary action likewise constitutes reprisal for EEO activity and is designed to deter me from further EEO activity."
Having considered the totality of the record as discussed above, we determine that Complainant is an aggrieved employee and raises employment discrimination on bases covered by EEO statues.
The Agency final decision dismissing the formal complaint is REVERSED. The formal complaint is REMANDED to the Agency for further processing in accordance with the ORDER below.
ORDER (E0610)
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 becomes final. 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 becomes final, 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.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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.
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. 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
April 1, 2014
__________________
Date
1 The record reflects that an AR 15-6 investigation refers to an administrative fact-finding initiated pursuant to Army Regulation 15-6.
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0120140692
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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