0120130665
03-24-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120130665
Agency No. 200H-0632-2013104106
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated January 16, 2014, 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 Nurse Assistant at the Agency's Veterans Affairs Medical Center in Northport, New York.
According to the record, Complainant initiated EEO counselor contact on July 28, 2013, claiming that he was subjected to harassment and a hostile work environment on the bases of race and in reprisal for prior EEO activity, as follows (herein referred to as "original complaint") on behalf of himself and "his Caucasian co-workers" alleging that, for the last few years, the Manager had verbally abused them by repeatedly giving them disciplinary write-ups, letters of reprimands, 3-day suspensions, forced resignations, and not paying white employees after forcing them to cover for African-American employees due to their "late comings," and leaving early from work.1
When counseling was unsuccessful, Complainant was issued a Notice of Right to File a Formal Complaint, which he received on November 4, 2013. On November 5, 2013, Complainant filed the instant formal complaint.
Thereafter, in correspondence dated November 21, 2013 and December 19, 2013, Complainant indicated he wished to amend his original formal complaint, to include claims of race and reprisal discrimination. The amended claim was as follows:
on November 18, 2013, he received a written counseling for sick leave usage.
The record reflects that in the instant final decision, the Agency provided Complainant with notice that it accepted the claim raised in his November 21, 2013 and December 19, 2013 correspondence as an amendment to his complaint.
The record further reflects that the EEO Counselor attempted to collect specific information from Complainant concerning the formal complaint. According to the EEO Counselor, Complainant's submissions were illegible and unclear. Moreover, the EEO Counselor indicated that Complainant had failed to respond appropriately to the EEO Counselor's requests to provide legible statements and/or contact him by telephone, in order to provide information verbally. As a result, the EEO Counselor closed Complainant's case on October 25, 2013, after identifying one general harassment claim that, on July 13, 2013, the Nurse Manager subjected Complainant and his co-workers to harassment and a hostile work environment.
The EEO Counselor contacted Complainant by telephone and e-mail on December 22, 2013, advising him that his complaint required clarification because his hand written statements were illegible and his typed submission did not provide the requisite information in order for the Agency to complete a procedural review. Complainant was also asked to provide specific dates and incidents of harassment. Complainant was cautioned that failure to provide the requested information could result in the dismissal of his complaint for failure to cooperate. Complainant rejected the EEO Counselor's offer of assistance.
On December 23, 2013, Complainant faxed a typed "diary-styled" submission in which he complained about the same nonspecific harassment claim. The EEO Counselor again contacted Complainant and explained that his December 23, 2013 submission was insufficient because it included no dates or specific events of harassment. Complainant was asked to either provide the requested information verbally or, again, to contact the EEO Counselor at a time convenient for Complainant. Complainant again rejected the EEO Counselor's offer for assistance. However, Complainant was provided the opportunity to follow the examples provided in the EEO Counselor's December 23, 2013 e-mail if he wanted to provide specific examples of discrimination or face the possibility that his complaint would be subject to dismissal.
The next day, December 24, 2013, Complainant faxed another diary styled submission in which he continued to complain about the same general harassment claim, and stated that he believed his previous submission on December 23, 2013 provided all the "bullet information" needed to proceed with his complaint.
In its January 16, 2014 final decision, the Agency dismissed the formal complaint on various procedural grounds. With respect to Complainant's claims regarding a 2007 EEO investigation and the processing of prior EEO complaints, the Agency dismissed the claims on the grounds that they alleged dissatisfaction with the processing of a prior complaint, pursuant to 29 C.F.R. � 1614.107(a)(8). Specifically, the Agency determined that Complainant alleges dissatisfaction with the actions of Agency representatives in his 2007 EEO investigation and related to approximately 50 of his prior EEO complaints.
The Agency further determined to the extent that Complainant was complaining about actions by his former union representative and/or his union grievances, these claims are dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) failure to state a claim. Specifically, the Agency determined these claims are a collateral attack on the negotiated grievance process.
Finally, the Agency dismissed complainant's complaint on the alternative grounds of failure to cooperate, pursuant to 29 C.F.R. � 1614.107(a)(7). Specifically, the Agency determined that the Equal Opportunity Counselor contacted Complainant several occasions, informing him that failure to clarify his claims could result in the dismissal of the claims, but that a clear and completed response was never sent to the Agency.
The instant appeal followed.
ANALYSIS AND FINDINGS
Failure to state a claim (claim 1 and actions by former union representative/union grievances)
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).
Complainant has not alleged a personal loss or harm regarding a term, condition or privilege of his employment. There is no allegation that Complainant was disciplined or subjected to any adverse personnel action as a result of the alleged events. To the extent Complainant is claiming a discriminatory hostile work environment, we find that the events described, even if proven to be true and considered together, would not indicate that Complainant has been subjected to harassment that was sufficiently severe or pervasive to alter the conditions of his employment. See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). Finally, the alleged Agency actions were not of a type reasonably likely to deter Complainant or others from engaging in prior protected activity. Lindsey v. USPS, EEOC Request No. 05980410 (November 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998).
Further, we find that Complainant's complaints about the actions by his former union representative and/or union grievances he filed constitute a collateral attack on the negotiated grievance 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. Department of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. USPS, EEOC Request No. 05940585 (September 22, 1994); Lingad v. USPS, EEOC Request No. 05930106 (June 24, 1993). The proper forum for Complainant to have raised his challenges to actions which occurred during the negotiated grievance process is within that process itself. It is inappropriate to now attempt to use the EEO process to collaterally attack actions which occurred through the negotiated grievance process.
Dissatisfaction with the processing of 2007 EEO investigation and prior complaints
EEOC Regulation 29 C.F.R. � 1614.107(a)(8) provides that an agency shall dismiss claims alleging dissatisfaction with the processing of a prior complaint. Dissatisfaction with the EEO process must be raised within the underlying complaint, not as a new complaint. See EEOC - Management Directive 110 (MP-110) 5 - 23, 5-25 to 5-26 (November 9, 1999). As already noted, Complainant did raise his concerns about the actions of the 2007 EEO investigation and the processing of his prior EEO complaints within the adjudication of those prior complaints. However, simply because he did not prevail in that prior adjudication, he is not entitled to resurrect his claims in a new complaint.
Moreover, we acknowledge that Complainant made reference to a "class complaint." However, we agree with the Agency that, because of Complainant's failure of articulation on this matter, it was more properly treated as an individual complaint for the reasons discussed above.
We further acknowledge that the Agency dismissed the formal complaint for failure to cooperate. However, because we have affirmed the Agency dismissal on other grounds, we find it unnecessary to address this matter.
Amended claim
Here, we find that the Agency properly dismissed the amended claim concerning Complainant's written counseling for sick leave usage. The original complaint was dismissed on the various grounds identified above. Therefore, this amended claim is deemed "faulty" or not a valid complaint, and consequently, Complainant cannot amend it. See Barnes v. Department of Veterans Affairs, EEOC Appeal No. 01A20491 (January 10, 2003).
In conclusion, for the reasons set forth above, we AFFIRM the Agency's final decision dismissing the captioned 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
March 24, 2015
__________________
Date
1 While unclear, to the extent Complainant was trying to raise a class claim, the Agency determined that during EEO counseling Complainant did not respond to repeated requests to provide any information in a "clear, cohesive, or legible manner which is necessary to forward a class complaint to EEOC for certification." The Agency concluded that it would therefore process the instant complaint as an individual complaint. On appeal, Complainant does not appear to challenge this determination, so we will also consider this an individual complaint.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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