Jarvis R.,1 Complainant,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Oct 11, 2019

2019004260 (E.E.O.C. Oct. 11, 2019)

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

Jarvis R.,1
Complainant,

v.

Ryan D. McCarthy,
Secretary,
Department of the Army,
Agency.

Request No. 2019004260

Appeal No. 2019002071

Hearing No. 410-2016-00185X

Agency No. ARHQOSA14DEC04787

DECISION ON REQUEST FOR RECONSIDERATION

Complainant requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 2019002071 (April 26, 2019). EEOC
Regulations provide that the Commission may, in its discretion, grant a request to reconsider any
previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), 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).

In his underlying complaint, Complainant alleged that the Agency discriminated against him
based on race (African-American), national origin (Jamaican), color (black), sex (male), age
(50), disability (mental), and in reprisal for prior EEO activity when:

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,

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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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,
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.

Following an investigation, Complainant submitted a request for hearing. Over Complainant’s
objections, the EEOC Administrative Judge (AJ) granted the Agency’s motion for dismissal
based on Complainant’s filing of his civil action concerning the same claims with the U.S.
District Court, Eastern District of Virginia, Alexandria Division. The AJ’s Order Granting
Agency's Motion to Return File to Agency for Dismissal stated careful consideration was
exercised to compare the EEO complaint with all of Complainant’s filings: the May 2016
Decision of the Merit Systems Protection Board’s (MSPB) 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.
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 AJ found that the claims
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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.

Thereafter, the Agency issued a final decision dismissing Complainant’s complaint pursuant to
29 C.F.R. § 1614.107(a)(3) and adopting the reasons stated in the AJ’s order. On appeal, the
Commission affirmed the Agency’s final decision. Specifically, the Commission found 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.

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. 2019002071 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 (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.

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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

October 11, 2019
Date