U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Zoraida T.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Information Systems Agency), Agency. Appeal No. 0120172794 Agency No. DOD-DISA-17-015 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency decision, dated July 18, 2017, dismissing a formal complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a Financial Management Specialist for the Agency's Funds Execution Team, of the Resource Management Center on Scott Air Force Base, in Mascoutah, Illinois. Believing that she was subjected to unlawful discrimination and harassment, Complainant contacted an EEO Counselor. Informal efforts to resolve Complainant's concerns were unsuccessful. Subsequently, she filed a formal complaint based on disability and reprisal for prior protected EEO activity. On July 18, 2017, the Agency issued a final decision. The Agency framed the claims as follows: 1. On July 30, 2010, RMO [S] denied Complainant an "on-the-spot monetary award" related to DITCO Europe; 2. On February 4, 2015, RMO [S] refused to engage in the interactive process by refusing to listen to Complainant's explanation of her difficulties keeping up with her assignments due to her disabilities; 3. On February 4, 2015, RMO [S] asked Complainant to work the Auto-Report in addition to her other assigned tasks; 4. On or about April 2015, RMO [S] retaliated against Complainant by shouting at her within ear shot of other employees; 5. On July 22, 2015, RMO [S] retaliated and harassed Complainant in a meeting regarding Complainant's Performance Work Plan (PWP), by writing false comments in the PWP; 6. On July 27, 2015, RMO [H] retaliated against Complainant by telling [her] she would need to manually post 112-120 credits that did not auto-post versus and express posting; 7. On August 20, 2015, RMO [S] came to Complainant's desk, noticed Complainant was upset and crying, took her into RMO [H]s office where she stated, "[Complainant] if you ever need anything taken off your plate all you have to do is ask." RMO [S's] statement is harassing because it implies that Complainant was not accommodated earlier because she failed to ask that assignments be taken "off her plate;" 8. On December 22, 2015, RMO[S] discriminated against and retaliated against Complainant by writing a false statement (regarding Complainant's workload) in block 31 of CA-2 Form to the Department of Labor; 9. On June 30, 2016, RMO [S] retaliated against Complainant by refusing or failing to assist and guide the Complainant's worker's compensation filing; 10. On or about March 2, 2017, RMO [B] discriminated against and harassed Complainant by lightening the assignment load of an abled employee and increasing the assignment load of Complainant; 11. From April 12, 2017, to the present, the Agency by RMOs [P, R, MW, and DW] retaliated against Complainant by assigning a partial agency employee [MW] to mediate Complainant's case; and 12. From April 12, 2017 to the present, the Agency by RMOS [P, R, MW, and DW] retaliated against Complainant by refusing to arrange mediation with Federal Sharing Neutrals. The Agency dismissed the entire formal complaint for failure to cooperate and not receiving EEO counseling. According to the Agency, while Complainant did contact an EEO Counselor, she later declined to participate in ADR/Mediation or traditional counseling. The Agency reasoned that because Complainant declined both options, "the issues raised during the pre-complaint process were not counseled as a direct result of [Complainant's] lack of cooperation in the pre-compliant process." Additionally, the Agency dismissed claims (8) and (9) for failure to state a claim. The Agency considered the issues to be a collateral attack on the Office of Worker's Compensation Programs. Finally, the Agency dismissed claims (11) and (12) as "spin-off" complaints, which alleged dissatisfaction with the processing of a previously filed complaint. Complainant filed the instant appeal. ANALYSIS AND FINDINGS Dismissal for failure to cooperate and not receiving EEO counseling The regulation set forth at 29 C.F.R. § 1614.107(a)(7) provides for the dismissal of a complaint where the agency has provided the complainant with a written request to provide relevant information or otherwise proceed with the complaint, and the complainant has failed to respond to the request within 15 days of its receipt or the complainant's response does not address the agency's request, provided that the request included a notice of the proposed dismissal. The regulation further provides that, instead of dismissing for failure to cooperate, the complaint may be adjudicated if sufficient information for that purpose is available. The Agency's dismissal for failure to cooperate and lack of counseling was improper. It is undisputed that Complainant contacted an EEO Counselor on March 29, 2017, and initially agreed to mediation. Mediation was scheduled for May 25, 2017. When, however, Complainant and her attorney learned the identity of the assigned mediator, her attorney expressed his dissatisfaction and requested a different mediator. While the Agency contends that the EEO Counselor offered the choice, of mediation as scheduled or traditional EEO counseling, and Complainant declined both, the record shows otherwise. Complainant argues on appeal that she did not refuse the EEO Counselor's request, and instead "participated actively in the counseling process." Specifically, the record contains a March 29, 2017 email from the EEO Counselor to Complainant, providing various documents for her to fill out. The record further shows the EEO Counselor sent Complainant an email, dated April 5, 2017, confirming receipt of the completed forms. The record also contains notes from the Counselor's initial interview with Complainant. The Counselor's Report describes the bases and issues, and specifically notes that "On April 4, 2017, [Complainant's] representative provided me with a detailed account of her allegations." Further, the Counselor describes meeting with Complainant on April 7, 2017, where she provided her account of the allegations. According to the EEO Counselor's Report, an inquiry was also conducted with Complainant's first-line manager. The EEO office also issued Complainant a Notice of Right to File a Formal Complaint, on May 11, 2017. The evidence in the instant case shows that Complainant was counseled on her claims. Complainant's representative may have indeed declined mediation. We determine, however, that such action does not constitute a failure to cooperate. In fact, as noted by Complainant on appeal, she made efforts to resolve the matter through a shared neutral mediator before deciding to file a formal complaint. It is only in cases where a complainant has engaged in delay or contumacious conduct and the record is insufficient to permit adjudication that the Commission has allowed a complaint to be dismissed for failure to cooperate. See Card v. U.S. Postal Serv., EEOC Request No. 05970095 (April 23, 1998); Kroeten v. U.S. Postal Serv., EEOC Request No. 05940451 (December 22, 1994). Therefore, under the circumstances, we find that the agency's dismissal for failure to cooperate was improper. Alternative dismissal grounds: claims (8), (9), (11) and (12) The Agency dismissed claims (8) and (9) as a collateral attack on the workers' compensation process. Dismissal of a claim is appropriate where a complainant is attempting to lodge a collateral attack on another proceeding. See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. United States Postal Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v. United States Postal Service, EEOC Request No. 05930106 (June 25, 1993). As noted above, Complainant alleges that the Agency provided a false statement to the Department of Labor (claim (8)) and failed to provide her with assistance in filing for workers' compensation (claim (9)). We agree with the Agency's dismissal, as the proper forum for Complainant to have raised her challenges to actions which occurred during the OWCP process was in that forum itself, as any remedial relief available to Complainant would be through the OWCP. See Pirozzi v. Department of the Navy, EEOC Request No. 05970146 (October 23, 1998) (allegedly false statements made by agency to OWCP during OWCP's processing of a workers' compensation claim goes to the merits of compensation claim); Hogan v. Department of the Army, EEOC Request No. 05940407 (September 29, 1994) (reviewing a claim that agency officials provided misleading statements to OWCP would require the Commission to essentially determine what workers' compensation benefits the complainant would likely have received); Reloj v. Department of Veterans Affairs, EEOC Request No. 05960545 (June 15, 1998) (claim that agency's providing false information to the OWCP resulted in denial of benefits is a collateral attack on OWCP's decision and, thus, fails to state a claim). Finally, the Agency dismissed claims (11) and (12) as "spin-off" complaints. 29 C.F.R. § 1614.107(a)(8) provides that the Agency shall dismiss a complaint that alleges dissatisfaction with the processing of a previously filed complaint. These types of complaints are commonly referred to as "spin off" complaints, and they do not state an independent claim. The record reflects Complainant's representative's objections to the mediator assigned to this matter. We find that claims (11) and (12) do not state separate claims of discrimination, and were properly dismissed. CONCLUSION The Agency's dismissal of claims (8), (9), (11), and (12) was proper and is AFFIRMED. The dismissal of claims (1) through (7), and (10) was improper and is REVERSED. Claims (1) though (7), and (10) are 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 (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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 November 7, 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 0120172794 2 0120172794 8 0120172794