Jarvis R,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Apr 26, 2019

2019002071 (E.E.O.C. Apr. 26, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Jarvis R,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.

Appeal No. 2019002071

Agency No. ARHQOSA14DEC04787

Hearing No. 410-2016-00185X

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated August 14, 2018, dismissing a formal
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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

During the period at issue, Complainant worked for the Agency as a Supervisory Program
Analyst at Fort Belvoir, Virginia.

On February 19, 2015, Complainant filed a formal complaint.2 Complainant claimed that the
Agency subjected him to discrimination based on race, national origin, sex, color, disability, age,
and in reprisal for prior protected EEO activity when:

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 later clarified and amended the complaint on May 10, 2015, August 11, 17, and
25, 2015, which were accepted.
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1. on or about November 4, 2014, management officials of the Chief Information
Office (“CIO”)/G-6, Headquarters, unlawfully reassigned and/or detailed
Complainant to a nonsupervisory position in the Cyber Security Directorate
(SAIS-CB), CIO/G-6, under the direct supervision of a subordinate employee,
resulting in a significant change in duty, which in effect was a demotion;

2. in November 2014, CIO/G-6 management refused to consider Complainant's
request to reclassify his Position Description from GS-0343-15 to a Senior Level
system employee, while unlawfully detailing him to work for a subordinate
employee;

3. from October 2012 to July 31, 2015, CIO/G-6 management failed to give
Complainant credit and compensation for overtime worked as the Acting
Director/Deputy Director, Chief Integration Office (CXO/SAIS-ZC), CIO/G-6;

4. in November 2014, CIO/G-6 management denied Complainant a reasonable
accommodation for a health condition when management did not consider him for
participation in the Voluntary Leave Transfer Program;

5. in November 2014, CIO/G-6 management failed to reasonably accommodate a
health condition when management did not approve Complainant's request to
work full time by telework from his residence in Alpharetta, Georgia;

6. in March 2015, CIO/G-6 management denied Complainant the opportunity to
attend cyber security training that he requested in order to meet the qualifications
for an "unlawful" detail assignment in SAIS-CB;

7. since November 2014, an Agency employee, acting on behalf of CIO/G-6
management, "unlawfully" recorded Complainant as Absent Without Leave and
Leave Without Pay for his time and attendance when he was in a duty status while
teleworking or while in approved leave status;

8. in January 2015, Complainant suffered "unlawful" discharge from the office as
the Acting Director/Deputy Director, CXO/SAIS-ZC, stood up a new Human
Resources/Management Support Directorate, with the remaining CXO/SAIS-ZC
functions, and "arbitrarily" promoted a subordinate to displace Complainant;

9. in January 2015, the Acting Director/Deputy Director wrote to Complainant,
telling him it was unacceptable for Complainant to tell other employees that he
remained in the capacity of Deputy Director, CXO/SAIS-ZC; and,

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10. in January 2015, the Acting Director/Deputy Director "unlawfully" subjugated
Complainant to an independent cubicle work space while kicking him out of an
office space, and burdened Complainant with a significant commute from Fort
Belvoir to the Pentagon.

At the conclusion of the investigation into the complaint, the Agency provided Complainant with
a copy of the report of investigation and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant requested for a hearing before an EEOC AJ.

During this same period, on July 28, 2015, Complainant appealed the Agency’s decision to
remove him from his detail in the CIO to the Merit Systems Protection Board (MSPB) (Docket
number DC-0752-15-1030-I-1). In the MSPB appeal, Complainant raised discrimination and
retaliation claims. On May 31, 2016, the MSPB AJ affirmed the Agency’s actions. The MSPB
AJ addressed each of Complainant’s many arguments in detail and concluded that Complainant
was not subjected to discrimination as alleged. The MSPB informed Complainant that he had the
right to file a petition for review of its decision with the EEOC’s Office of Federal Operations, or
to file a civil action in federal district court. The decision further informed Complainant that he
was permitted to choose only one avenue of review, and that, once chosen, he would be
precluded from pursuing any other.

While the EEO complaint was still pending before the EEOC AJ, on or about August 1, 2016,
Complainant filed suit in the U.S. District Court for the Northern District of Georgia, raising
numerous claims, including claims of employment discrimination, as well as constitutional
claims, criminal assault claims, Health Insurance Portability and Accountability Act of 1996
claims, Privacy Act claims, and tort claims, among others, all arising from his Agency
employment during the time period at issue in this case. The case was subsequently transferred to
the Eastern District of Virginia, Alexandria Division (Civil Action No. 1:16-cv-1454).
Complainant subsequently filed an amended complaint in March 2017. By Memorandum
Opinion dated July 11, 2017, U.S. District Judge dismissed the amended complaint on the
grounds that Complainant’s claims were barred by the doctrine of res judicata. Complainant
appealed the U.S. District Judge’s Order to the U.S. Court of Appeals for the Fourth Circuit.

The Agency filed a motion with the EEOC AJ to dismiss the administrative EEO complaint
based on Complainant’s filing of his civil suit concerning the same claims with the U.S. District
Court, Eastern District of Virginia, Alexandria Division.

On July 20, 2018, the EEOC AJ issued an Order Granting Agency’s motion for dismissal. The
EEOC AJ stated careful consideration was exercised to compare the EEO complaint with all
submissions: the May 2016 Decision of the MSPB AJ in Docket number DC-0752-15-1030-I-1,
Complainant’s initial and amended complaints in Civil Action No. 1:16-cv-1454; the U.S.

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District Judge’s Memorandum Opinion dismissing Complainant’s amended complaint pursuant
to the doctrine of res judicata; and the September 11, 2017 Informal Brief that Complainant filed
in his Fourth Circuit appeal of U.S. District Judge’s dismissal. The EEOC AJ found that the
claims raised in the instant case were either explicitly or implicitly raised before and rejected on
the merits by the MSPB, and/or remain pending (at the time) in Complainant’s Fourth Circuit
appeal. Accordingly, the EEOC AJ determined that the doctrine of res judicata and Commission
regulations barred the Commission’s further consideration of Complainant’s case and dismissed
the complaint pursuant to 29 C.F.R. §§ 1614.107(a)(3) and 1614.109(b).

On August 14, 2018, the Agency issued its final decision adopting the EEOC AJ’s dismissal
decision pursuant to 29 C.F.R. § 1614.107(a)(3) and 1614.109(b).

The instant appeal followed.

ANALYSIS AND FINDINGS

Commission regulations provide for the dismissal of any complaint, “[t]hat is the basis of a
pending civil action in a United States District Court in which the complainant is a party
provided that at least 180 days have passed since the filing of the administrative complaint, or
that was the basis of a civil action decided by a United States District Court in which the
complainant was a party.” 29 C.F.R. § 1614.107(a)(3).

Here, the record indicates that on or about August 1, 2016, Complainant filed a civil action at the
U.S. District Court in the Eastern District of Virginia, Alexandria Division (Civil Action No.
1:16-cv-1454), concerning the same issues raised in the instant EEO complaint. Therefore, we
find that the complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(3).

Accordingly, the Agency's decision to adopt the EEOC AJ’s decision to dismiss pursuant to 29
C.F.R. §§ 1614.107(a)(3) and 1614.109(b) is AFFIRMED for the reasons discussed above.

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.
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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.

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.
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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, Director
Office of Federal Operations

April 26, 2019
Date