U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sylvia B.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Intelligence Agency), Agency. Appeal No. 0120170479 Agency No. DIA201600059 DECISION Complainant timely appealed with this Commission from the Agency's November 2, 2016 dismissal of 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Production Requirements Specialist (GG-13) at the Agency's Directorate of Analysis, Defense Combating Terrorism Center ("DCTC") in Washington, D.C. On August 7, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of race (Asian-American) when:2 1. On January 4, 2016, her supervisor, the Director for Analysis ("S2"), removed her from her position as Director for Analysis Executive Officer and reassigned her as a Production Requirements Specialist. 2. In mid-March, 2016, she learned that she did not receive a bonus, despite scoring an overall performance rating equal to and higher than her peers who received bonuses, and she believes the Deputy Director ("D1") advised her supervisor(s) to deny her bonus. 3. On March 21, 2016, S2 issued her a Notice of Proposed Suspension for 10 calendar days. 4. On May 19, 2016, D1 issued her a Suspension for 10 calendar days. 5. On May 31, 2016, she requested that her appeal official be someone with no prior knowledge of the IG investigation into inappropriate use of IT systems, however her right to a fair review was disregarded by D1 and D1 did not recuse himself. 6. On July 7, 2016, she received her final grievance decision from D1 upholding the May 19, 2016 decision to suspend her for 10 calendar days. In 2015, the Agency's Office of the Inspector General ("OIG") conducted an investigation and found Complainant engaged in "inappropriate use of government information technology ("IT") and lack of candor." Specifically, Complainant failed to disclose during the investigation that she met with her former supervisor ("S1") and that she used S1's ID and password, which he had given her. According to Complainant it was common practice for the Executive Officers, including her two (white) predecessors, to have and use the passwords of the Directors. According to Complainant, the DTCT Deputy Director ("D1") (white), was involved with the OIG investigation, and upon obtaining the results, exercised his authority over her current supervisor ("S2") (white) to reassign her to the position of Production Requirements Specialist, effective January 2016. Before the reassignment, Complainant spent six years with the Agency in various Executive Officer positions, and consistently received "outstanding" reviews. In March 2016, Complainant became aware that her coworkers already received their bonuses and she had not. Complainant attributed S2's withholding of her bonus to D1, given that her Performance Appraisal contained all "outstanding" ratings, which usually warranted a bonus. On March 21, 2016, D1 issued Complainant a Letter of Proposed Suspension for 10 days as discipline for her "inappropriate use of government information technology ("IT") and lack of candor." In a letter to the Chief of Staff ("CS") Complainant contested the proposed suspension and requested that it be reduced to 2 days. Among other things, Complainant cited her excellent performance record, that she had never been subject to disciplinary action before this incident, her lack of malicious intent and infrequent use of S1's credentials. She also took ownership of her lack of candor, expressing a desire for rehabilitation in the Agency. On May 19, 2016, CS issued a "Decision to Suspend for Ten (10) Calendar Days" to Complainant. On May 31, 2016, Complainant appealed by filing a grievance in accordance with the Agency's Employee Grievance System through the Office of Human Resources ("OHR"). The Agency denied Complainant's request that an Agency Official other than D1 (i.e. one not involved with the 2015 OIG investigation) review her grievance. On July 7, 2016, D1 issued a decision affirming the 10 day suspension. Complainant initiated the instant complaint. The Agency dismissed Claims 1 through 4 as untimely pursuant to 29 C.F.R. § 1614.107(a)(2), and Claims 5 and 6 for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). ANALYSIS AND FINDINGS Claims 1 through 4 EEOC Regulation 29 C.F.R. §1614.107(a)(2) states, in relevant 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. Under §1614.105(a)(1), an aggrieved person must initiate contact with an EEOC Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. Where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." See Williams v. Dep't of Defense, EEOC Request No. 05920506 (Aug. 25, 1992)). Additionally, "the agency has the burden of providing evidence and/or proof to support its final decisions." See Ericson v. Dep't of the Army, EEOC Request No. 05920623 (Jan. 14, 1993); Gens v. Dep't of Defense, EEOC Request No. 05910837 (Jan. 31, 1992); Marshall v. Dep't of the Navy, EEOC Request No. 05910685 (Sept. 6, 1991). The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the 45 day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. See Complainant v. United States Postal Serv., EEOC Appeal No. 0120120499 (Apr. 19, 2012). It is well established that a complainant may not have a reasonable suspicion of discrimination until the agency treats a coworker outside complainant's protected class(es) differently. See Swanigan v. United States Postal Serv., EEOC Appeal No. 01A33469 (Mar. 31, 2004); Gladden v. Dep't of the Treasury, EEOC Appeal No. 01A15024 (Dec. 14, 2001); Gadsden v. Dep't of the Navy, EEOC Appeal No. 01A05418 (Apr. 13, 2001). Complainant alleges she was not aware that she was treated differently than those outside her protected class until mid-June 2016, when she became aware of the results of another OIG investigation. In both the Counselor's Report and in her appellate brief, Complainant explains that a "recent and separate [Agency] OIG investigation completed early May 2016 revealed that several [Agency] Senior officials shared their system passwords and CAC pins with their staff," just as S1 shared his credentials with Complainant. Complainant asserts that contrary to her own experience, the other Executive Officers found to have engaged in inappropriate use of government IT were not reassigned, suspended, or otherwise disciplined. The Agency did not address Complainant's explanation in its decision, nor has it provided any response on appeal. We find that reasonable suspicion was triggered in mid June 2016, which falls within 45 days of July 8, 2016, the date Complainant initiated contact with an EEO counselor. Hence Claims 1 through 4, all related to the IT situation for which Complainant was suspended, are timely pursuant to 29 C.F.R. §1614.105(a)(1). Alternately, based on the circumstances presented in this case, we exercise our discretion under 29 C.F.R. § 1614.604(c) to find Claims 1 through 4 timely. Claims 5 and 6 The regulation set forth at 29 CF.R. § 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim. This Commission has generally held that complaints involving other administrative proceedings do not state a claim within the meaning of its regulations. For instance, 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 (Jul. 30, 1998); Kleinman v. United States Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Linead v. United States Postal Serv., EEOC Request No. 05930106 (Jun. 25, 1993). A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum's proceeding, such as the grievance process, the unemployment compensation process, or the workers' compensation process. See Shibel v. Dep't of the Navy, EEOC Appeal No. 01987064 (Aug. 12, 1999); Fisher v. Dep't of Defense, EEOC Request No. 05931059 (Jul. 15, 1994). Here, both Claims 5 and 6 constitute attempts to lodge a collateral attack on the Agency's OHR grievance process. Claim 5 challenges the review and decision making process, (e.g. selection of adjudicators), while Claim 6 is essentially a request for this Commission to impose its judgment on a decision issued in another administrative proceeding. The proper forum for Complainant to challenge actions related to the Agency's OHR grievance process is within the proceeding itself or in accordance with its applicable statute. CONCLUSION Accordingly, we REVERSE the Agency's dismissal of Claims 1 through 4 and AFFIRM the Agency's dismissal of Claims 5 and 6. Claims 1 through 4 are hereby REMANDED to the Agency for further processing in accordance with the Order below. ORDER (E1016) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. 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 was issued, 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 (M0416) 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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations March 31, 2017 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 Complainant's formal complaint contained an additional claim, which the Agency properly dismissed, and Complainant did not raise on appeal. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120170479 7 0120170479