EEOC Appeal 2020000979

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Woodrow F., 1
Complainant,
v.
Ryan D. McCarthy,
Secretary,
Department of the Army,
Agency.
Appeal No. 2020000979
Agency No. ARREDSTON19JUN02261
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated October 4, 2019, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a non-supervisory Program
Analyst, and was serving as an Acting Acquisition Branch Chief at an Agency Command in
Redstone Arsenal, Alabama.
On August 27, 2019, Complainant filed a formal equal employment opportunity (EEO) complaint
alleging that the Agency subjected him to disparate treatment and hostile work environment
harassment on the basis of race (African-American) when:
1. 	on March 11, 2019, management reassigned Complainant to a Program
Executive Officer, Aviation, Command Information Officer position, and
2. 	on May 20, 2019, the Agency failed to respond to Complainant’s request
for a Step 3 grievance (regarding his reassignment) within the negotiated
grievance process.
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.

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The Agency dismissed claim (1) pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO contact
and claim (2) pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. 	For (1), the
Agency stated that Complainant initiated EEO contact on June 4, 2019, 2 for an incident that
occurred on March 11, 2019. 	For (2), the Agency stated that Complainant chose to enter the
negotiated grievance process on March 22, 2019, and concerns regarding that process should be
addressed within that forum. The instant appeal from Complainant followed.
ANALYSIS AND FINDINGS
Regarding (1), the record discloses that the alleged discriminatory event occurred on March 11,
2019, but Complainant did not initiate contact with an EEO Counselor until June 4, 2019, which
is beyond the forty-five (45) day limitation period articulated in 29 C.F.R. § 1614.105. On appeal,
Complainant has presented no persuasive arguments or evidence warranting an extension of the
time limit for initiating EEO Counselor contact.
Further, for (2), the Commission concurs with the Agency that Complainant's claim constitutes an
impermissible collateral attack on the union grievance process. See Wills v. Dep't of Defense,
EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Service, EEOC Request
No. 05940585 (September 22, 1994); Lingad v. U.S. Postal Service, EEOC Request No. 05930106
(June 24, 1993). The record reveals that Complainant filed a union grievance regarding his
reassignment alleging a violation of the collective bargaining agreement. Complainant filed a Step
1 on March 22, 2019, a Step 2 on May 9, 2019, and a Step 3 grievance on May 20, 2019. He felt
the Agency did not respond to the Step 3 grievance. It is inappropriate for Complainant to use the
EEO forum to lodge a collateral attack on Agency actions from a non-EEO proceeding. The proper
forum for Complainant to challenge Agency actions concerning the grievance process is within
the grievance proceeding itself.
Here, we find dismissal of Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)
appropriate.
CONCLUSION
Based on the above, we AFFIRM the final agency decision dismissing Complainant’s complaint.
2 The EEO Counselor’s Report shows June 6, 2019 as the date of initial EEO contact. However,
this decision will utilize the earlier date provided in the Agency dismissal.

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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 (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.

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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
August 27, 2020
Date