0520140141
05-21-2014
Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Request No. 0520140141
Appeal No. 0120132336
Hearing Nos. 531-2007-00253X; 531-2007-00254X; 531-2007-00255X;
531-2007-00290X; 531-2008-00291X; 531-2008-0381X
Agency Nos. 06-00167-02226; 06-00167-02692; 07-00167-00353;
07-00167-00648; 07-00167-02924; 08-00167-00283
DENIAL
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120132336 (November 25, 2013). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c).
Complainant filed EEO complaints alleging that the Agency discriminated against him on the bases of national origin (Russian), age, and reprisal for prior protected EEO activity when, from June 2006 to October 2007, he was not selected, assigned, or promoted to 14 positions at the ND-5 level.1
The appellate decision affirmed the Agency's final order, which implemented the March 4, 2013 decisions by two EEOC Administrative Judge's (AJs) to dismiss Complainant's complaints pursuant to 29 C.F.R. �� 1614.107(a)(3), for raising the same matters in a civil action. Specifically, the appellate decision found that Complainant filed Civil Action No. 1:13-cv-00141-RDB in the United States District Court for the District of Maryland on January 11, 2013. In addition, the appellate decision found that the civil action alleged continuing acts of discrimination under Title VII and the ADEA beginning in 2002 and continuing through the date the civil action was filed. Further, the appellate decision found that the civil action alleged a broad pattern of escalating discrimination including employment opportunities, assignments, and promotions. Finally, the appellate decision found that the claims raised in the instant complaints involved the same allegations and, thus, were encompassed within the broad scope of the civil action.
In his request for reconsideration, Complainant argued that the appellate decision clearly erred in finding that the claims raised in the civil action were the same as the claims raised in the instant complaints. Specifically, Complainant asserted that the claims in the civil action involved Agency actions from the 2009-2010 timeframe whereas the claims in the instant complaints involved Agency actions from the 2006-2007 timeframe. In addition, Complainant asserted that the claims in the civil action and the claims in the instant complaints involved different positions, different vacancy announcements, different selecting officials, and different selectees. Further, Complainant asserted that the civil action listed only claims from six EEO complaints that the Commission had previously adjudicated in EEOC Appeal Nos. 0120113931, 0120113932, 0120113933, 0120113934, 0120113935, 0120113936 (Oct. 11, 2012). Finally, Complainant quoted the following language from the civil action: (1) "Other claims, specifically identified in the EEO Commission notices of right to file [a] civil action, are filed against other or additional Defendants and addressed in [a] different complaint to be adjudicated separately;" and (2) "Additional claims of intentional discrimination ... pending adjudication are not part of this complaint."
Upon review, we find that Complainant's request for reconsideration does not demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Specifically, Complainant failed to show that the appellate decision clearly erred in finding that the claims raised in the civil action were the same as the claims raised in the instant complaints.
Looking at the 60-page civil action complaint as a whole, we agree with the appellate decision that Complainant alleged a broad pattern of discrimination by the Agency involving selections, assignments, and promotions that encompassed the 2006-2007 claims in the instant complaints. For example, in the section titled "Exhaustion of Administrative Remedies," Complainant alleged that, since his first EEO complaint in 2002, the Agency has escalated intentional discrimination against him on the bases of national origin, age, and reprisal by denying him opportunities for promotion to positions at the ND-5 level. In addition, in the section titled "Factual Allegations," Complainant described a "pattern of continuous discrimination" beginning as early as 2000 and continuing through the decade involving his non-selection, non-assignment, and non-promotion to positions at the ND-5 level. Moreover, in the section titled "Statement of Claims," Complainant explicitly incorporated by reference everything he had discussed in the civil action complaint up to that point, which included the allegations of continuous discrimination since 2000. Finally, in the section titled "Prayer for Relief," Complainant requested $385,000,000 in compensatory damages - an amount that suggests he intended to recover damages for over a decade's worth of continuous discrimination.
We note that the Commission has previously affirmed the dismissal of Complainant's complaints or dismissed Complainant's pending appeals after finding that his civil court filings were so broad as to include any EEO claims pending in the administrative process at the time of his filing. See EEOC Appeal No. 0120081393 (Dec. 22, 2011); EEOC Appeal No. 0120073694 (Dec. 22, 2011); EEOC Appeal Nos. 0120061303, 0120062900, 0120063442, 0120064410 (Apr. 26, 2007); EEOC Appeal Nos. 0120060960, 0120061208 (Apr. 26, 2007).
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120132336 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
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
_5/21/14_________________
Date
1 Please refer to EEOC Appeal No. 0120132336 for a listing of Complainant's claims.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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