0120111852
06-26-2013
Peter A. Moon, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (National Institutes of Health), Agency.
Peter A. Moon,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services
(National Institutes of Health),
Agency.
Appeal No. 0120111852
Agency No. HHS-NIH-0165-2010
DECISION
On February 18, 2011, Complainant filed an appeal from the Agency's January 15, 2011 final decision concerning his equal employment opportunity (EEO) complaint alleging 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 pursuant to
29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS in part and VACATES in part the Agency's final decision.
ISSUES PRESENTED
The issues presented are: (1) whether the Agency properly dismissed allegation (8) for failure to state a claim; and (2) whether the Agency fragmented Complainant's hostile work environment claim.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Facilities Maintenance Specialist at the Agency's Office of Research Facilities in Bethesda, Maryland. Complainant's First Level Supervisor was the Supervisory Facilities Operations Specialist (S1). Complainant's Second Level Supervisor was the Real Property Management Office Deputy (S2).
On February 24, 2010, Complainant contacted an EEO Counselor. On April 9, 2010, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (Caucasian) and reprisal for prior protected EEO activity (participated as a witness in an unnamed co-worker's complaint; contacted an EEO Counselor in the instant complaint) when:1
1. On June 16, 2008, January 27, 2009, July 1, 2009, August 14, 2009, October 22, 2009, November 25, 2009, and as late as the week beginning April 12, 2010, S1 denied him training;
2. From June 15, 2008 up to and including the current pay period, S1 denied him overtime;
3. On February 4, 2010, S1 denied his sick leave request and then charged him sick leave even though he did not attend his doctor's appointment;
4. On February 8, 2010, S1 charged him leave for not coming into work during a blizzard, but did not do so for other employees;
5. Beginning on February 22, 2010, S1 failed to act on his leave restoration request;
6. On February 19, 2010, S1 failed to grant his leave request in a timely manner and humiliated him in front of his co-workers when, after asking S1 if his leave was approved because he had to leave in 3 minutes, S1 said, "I'll let you know in 2 minutes and 58 seconds;"
7. On or about February 28, 2010, S1 told his co-worker that he (S1) was upset that the co-worker was friendly to him (Complainant);
8. Beginning on January 27, 2010, S1 refused to fill out his Office of Workers' Compensation Programs (OWCP) form
9. Beginning on or about March 15, 2010, S1 refused to speak to him on the day-to-day operations of the office, treated him in an undignified way, and acted in a passive-aggressive manner towards him by dropping papers on his desk without speaking or addressing him directly;
10. Beginning on or about March 15, 2010, S1 spoke about him in a derogatory manner to his co-workers and said, "I'm going to get him."
11. Beginning on February 27, 2010, S1 performed quality assurance checks on his work;
12. Beginning on June 15, 2008, S2 ignored his repeated requests to address his concerns about the work environment; and
13. Beginning on July 30, 2008, S2 cut funding for his training and refused to meet with him about his work situation or training opportunities.
On May 7, 2010, the Agency accepted allegations 3-6 and 9-12 for investigation, but dismissed allegations 1, 2, 7, 8, and 13. Specifically, the Agency dismissed allegations 1, 2, and 13 pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. In addition, the Agency dismissed allegation 2 pursuant to 29 C.F.R. � 1614.107(a)(2), for raising a matter that has not been brought to the attention of an EEO Counselor. Further, the Agency dismissed allegations 7 and 8 pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). In addition to its prior procedural dismissals, the Agency dismissed the basis of reprisal in allegations 3 - 6 and 11 pursuant to
29 C.F.R. � 1614.107(a)(1), for failure to state a claim. Although Complainant contended that he participated as a witness in an unnamed co-worker's complaint, the Agency found that he provided no dates of his participation, he provided no evidence of such participation, and the record did not substantiate that he had engaged in such activity.2 Analyzing the remaining allegations (3 - 6 and 9 - 12) on their merits, the Agency concluded that Complainant failed to prove that management subjected him to disparate treatment and harassment as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant argued, among other things, that allegation 8 was not a collateral attack because there was no OWCP proceeding to collaterally attack. In addition, Complainant argued that the Agency fragmented his hostile work environment claim by improperly dismissing allegations 1, 2, 7, 8, and 13.
The Agency did not submit a brief or statement in opposition to Complainant's appeal.
ANALYSIS AND FINDINGS
Allegation 8
In his formal complaint, Complainant alleged that S1 refused to fill out his OWCP form and that S1's refusal held up his OWCP claim. Specifically, Complainant stated that S1 only wrote "no comment" on the form and deleted emails related to the signing of the form.
Upon review, we find that the Agency properly dismissed allegation 8 pursuant to
29 C.F.R. � 1614.107(a)(1), for failure to state a claim. An employee cannot use the EEO complaint process to lodge a collateral attack on another 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). The proper forum for Complainant to have raised his challenges regarding S1's completion of his OWCP paperwork was within that forum itself. The Commission has previously held that, without more, claims concerning delay in submitting paperwork to OWCP, or submitting incomplete or faulty paperwork, constitute a collateral attack on the OWCP process. See Schneider v. U.S. Postal Serv., EEOC Request No. 05A01065 (Aug. 15, 2002). It is inappropriate to now attempt to use the EEO process to collaterally attack actions involving Complainant's OWCP claim and the OWCP process. Accordingly, we AFFIRM the Agency's dismissal of allegation 8.
Hostile Work Environment Claim
A claim refers to an assertion of an unlawful employment practice or policy for which, if proven, there is a remedy under the federal equal employment statutes. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 5, � III (Nov. 9, 1999). The fragmentation, or breaking up, of a complainant's legal claim during EEO complaint processing often results from a failure to distinguish between the claim the complainant is raising and the evidence (factual information) he is offering in support of that claim. Id. Often, when an agency identifies each piece of factual evidence (usually comprising a single incident) offered by the complainant as a separate and distinct legal claim, it ignores the complainant's real underlying claim of a pattern of ongoing discrimination. Id. For complainants, fragmented processing can compromise their ability to present an integrated and coherent claim. Id.
Here, we find that the Agency fragmented Complainant's hostile work environment claim when it improperly dismissed allegations 1, 2, 7, and 13. A fair reading of the matters in allegations 1 - 13 reflects that Complainant is alleging that S1 and S2 repeatedly harassed him by denying him training, denying him overtime, improperly dealing with his leave, making derogatory comments about him to his co-workers, and scrutinizing his work. In his formal complaint, Complainant explicitly stated, "I have been discriminated against in my workplace in that I have not been afforded the same level of respect and opportunity and have been subject to a hostile and harassing work environment."
Regarding allegations 1, 2, and 13, we find that the Agency improperly dismissed them for untimely EEO Counselor contact. EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination be brought to the attention of the EEO Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory. The Supreme Court has held that a complaint alleging a hostile work environment will not be time barred if all acts constituting the same 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, 122 (2002). Here, the record reflects that at least one incident alleged in Complainant's hostile work environment claim, of which allegations 1, 2, and 13 are a part of, occurred in the 45 days prior to his February 24, 2010 EEO Counselor contact.
Regarding allegation 2, we find that the Agency improperly dismissed it for raising a matter that has not been brought to the attention of an EEO Counselor. EEOC Regulation
29 C.F.R. � 1614.107(a)(2) provides, in pertinent part, that an agency shall dismiss a complaint or portion thereof which raises a matter that has not been brought to the attention of an EEO Counselor, and is not like or related to a matter on which complainant has received counseling. Here, we find that allegation 2, denial of overtime, is like or related to a matter on which Complainant has received counseling because it is part of his hostile work environment claim which, among other matters, raised allegations such as denial of training and denial of leave.
Regarding allegation 7, we find that the Agency improperly dismissed it for failure to state a claim. The Agency found that the allegation did not state a claim because it was a remark or comment unaccompanied by concrete action. While the allegation standing alone may not state a claim, we find that it is part of Complainant's broader claim of hostile work environment.
CONCLUSION
Based on a thorough review of the record, the Commission AFFIRMS the Agency's final decision dismissing allegation 8, VACATES the remainder of the Agency's final decision, and REMANDS Complainant's hostile work environment claim (allegations 1-7 and 9-13) to the Agency in accordance with this decision and the Order below.
ORDER
The Agency is ORDERED to take the following actions:
1. The Agency shall conduct a supplemental investigation on Complainant's hostile work environment claim, focusing on the allegations (1, 2, 7, and 13) that it previously dismissed.
2. The Agency shall complete its supplemental investigation and issue a new final decision, together with the appropriate appeal rights, within one hundred and twenty (120) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. A copy of the Agency's new final decision 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 (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.
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
__6/26/13________________
Date
1 For purposes of clarity, we have rephrased Complainant's allegations based on his formal complaint and his April 22, 2010 response to the Agency's letter of clarification.
2 According to the EEO Counselor's Report, Complainant stated that he was a witness in 2009.
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0120111852
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013