Vivian Redding, Complainant,v.Eric Fanning, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionJul 17, 2014
0120141738 (E.E.O.C. Jul. 17, 2014)

0120141738

07-17-2014

Vivian Redding, Complainant, v. Eric Fanning, Acting Secretary, Department of the Air Force, Agency.


Vivian Redding,

Complainant,

v.

Eric Fanning,

Acting Secretary,

Department of the Air Force,

Agency.

Appeal No. 0120141738

Agency No. 9R1M13111

DECISION

Complainant filed a timely appeal with this Commission from the Agency's decision dated November 22, 2013, dismissing his 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

At the time of events giving rise to this complaint, Complainant worked as a Sheet Metal Mechanic at the Agency's Robins Air Force Base facility in Warner Robins, Georgia.

On November 1, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), color (Black), and age (53) when on July 30, 2013 and August 28, 2013, Complainant's supervisor failed to adhere to the Agency's Memorandum of Agreement (MOA) regarding employee time slots for physical fitness. Complainant claims that his supervisor tried to give his physical fitness time slot to a younger white male employee.

The record indicates that the Agency operates under a MOA with the Union on physical fitness and wellness activities. Under the agreement, employees may voluntarily participate in physical fitness and wellness programs available at the Agency's facility during the duty day provided they meet certain criteria and guidelines set forth in the MOA. The MOA allows employees to sign up for certain pre-determined days and times to engage in physical fitness. The MOA further provides that the Agency shall look to leave service computation dates to resolve any conflicts between employees that may arise concerning days and times selected.

In his formal complaint, Complainant alleges that his supervisor did not adhere to the MOA guidelines when she tried to force him to take an undesirable fitness time slot. Complainant avers that a younger white employee was permitted to have a preference for time slots, while Complainant was forced into an earlier time slot at 7:30 a.m.

ANALYSIS AND FINDINGS

An agency shall accept a complaint from any aggrieved employee 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) If an employee cannot show that he or she has suffered harm or loss with respect to a term, condition, or privilege of employment, they have not stated a claim. Under EEOC regulation 29 C.F.R. � 1614.107(a)(1) an agency shall dismiss a complaint that fails to state a claim.

Here, Complainant contends that he was subjected to discrimination when his supervisor failed to adhere to the MOA guidelines regarding employee physical fitness. In his formal compliant Complainant indicates that his supervisor tried to force him into a 7:30 a.m. time slot for physical fitness while she allowed a younger white male employee to have his pick of time slots. However, the record contains a copy of the fitness schedule indicating that Complainant is assigned the time slot of 10:00-11:00 a.m. on Monday, Wednesday and Friday. In addition, Complainant acknowledges that his physical fitness is schedule for 10:00-11:00 a.m. on Monday, Wednesday and Friday. According to the Agency, Complainant was not forced to take the 7:30 a.m. time slot as alleged, nor did Complainant's supervisor fail to adhere to the MOA. Complainant was asked to provide evidence regarding his claims but failed to do so. Complainant claimed that his supervisor tried to change his physical fitness time slots. However, the record does not demonstrate that Complainant suffered any harm with respect to the terms and conditions of his employment.

The Commission finds therefore, that the complaint fails to state a claim under the EEOC regulations because Complainant failed to show that he suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994).

Moreover, to the extent that Complainant is challenging his supervisor's conduct with respect to implementing the MOA between the Agency and the Union; we find that his claim is an impermissible collateral attack. The Commission has consistently held that an employee cannot use the EEO complaint process to lodge a collateral attack on another forum's 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 MOA between the Agency and the Union is outside the jurisdiction of the EEO process. The proper forum for Complainant to have raised his challenges to actions occurring with respect to the MOA was within the grievance process and not EEO.

Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED for the reasons set forth herein.

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

July 17, 2014

__________________

Date

2

0120141738

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120141738