Jed T.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.Download PDFEqual Employment Opportunity CommissionMar 15, 20192019000770 (E.E.O.C. Mar. 15, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jed T.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency. Appeal No. 2019000770 Agency No. ARIMCOMHQ18JUL02858 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated September 27, 2018, dismissing his complaint (Complaint 2) 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 Complaint 2, Complainant was employed by the Agency as a Police Officer, GS-083-6 in its Police Department in Aberdeen Proving Ground, Maryland. In December 2017, Complainant filed equal employment opportunity (EEO) Complaint 1 alleging that he was subjected to sexual harassment based on his sex on November 22, 2017. On August 20, 2018, Complainant filed EEO Complaint 2 (the complaint at issue) alleging that he was retaliated against for filing EEO Complaint 1 in violation of Title VII when the Agency’s EEO function improperly processed Complaint 1 by, among other things, having an EEO office with a conflict of interest process it over his objection, the EEO counselor did not try to interview the two perpetrators, did not interview certain witnesses or certain potential witnesses thereto, failed to ask the management official who neglected his responsibility to stop the incident of harassment an 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. 2019000770 2 important question, showed the management official his statement, and the Agency dismissed Complaint 1 (on appeal the Commission reversed this dismissal). The Agency dismissed Complaint 2 pursuant to 29 C.F.R. § 1614.107(a)(8) for being a spin-off complaint, i.e., being a complaint about the processing of an existing complaint. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(8) requires that prior to a request for a hearing, the Agency dismiss an entire complaint that alleges dissatisfaction with the processing of a previously filed complaint. Complaint 2 falls squarely within this regulation. Accordingly, the FAD is AFFIRMED. 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 2019000770 3 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. 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 March 15, 2019 Date Copy with citationCopy as parenthetical citation