Mario H.,1 Complainant,v.Ryan D. McCarthy, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Aug 21, 2019

2019003039 (E.E.O.C. Aug. 21, 2019)

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

Mario H.,1
Complainant,

v.

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

Appeal No. 2019003039

Agency No. ARTYAD15DEC048502

DISMISSAL OF APPEAL

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency’s decision dated September 20, 2018, 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.

ISSUE PRESENTED

The issue presented is whether Complainant’s appeal was timely and appropriately filed.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Information
Technology Specialist at the Agency’s facility in Tobyhanna, Pennsylvania.

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 On appeal, Complainant’s appeal was docketed as referring to Agency Case Number
ARTYAD18JUL03184. This appears to have been in error. However, to the extent that
Complainant is attempting to appeal any issues related to ARTYAD18JUL03184, Commission
records indicate that the matter is pending with the Philadelphia District Office with Hearing
Number 530-2019-00340X.
2019003039

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On April 28, 2015, Complainant filed a formal complaint of discrimination (Agency Case number
ARTYAD15MAR00987). On January 22, 2016, Complainant filed a second formal complaint of
discrimination (Agency Case number ARTYAD15DEC04850). On February 5, 2016,
Complainant requested to amend his complaint. On March 14, 2016, the Agency partially
accepted, and partially dismissed the claims. The Agency provided that Complainant could not
appeal the partial dismissals until he received the final Agency decision.

Both formal complaints were investigated. Following the investigations, Complainant requested
separate hearings before an Equal Employment Opportunity Commission Administrative Judge
(AJ). Subsequently, the matters were consolidated. The AJ held a settlement conference regarding
both complaints and an agreement was reached on March 27, 2017. The settlement agreement was
later ratified on May 23, 2017, and re-signed on June 8, 2017.

On July 11, 2017, Complainant alleged that the settlement agreement was invalid and
unenforceable. On September 7, 2017, the Agency issued a determination that the settlement
agreement was valid and enforceable, and that it was in full compliance. Subsequently,
Complainant alleged that the Agency was in breach of the settlement agreement. On March 13,
2018, the Agency issued a final determination that it was in full compliance. Complainant appealed
those determinations to the Commission.

On August 7, 2018, the Commission affirmed the Agency’s finding that the settlement agreement
was valid, enforceable, and that no breach had occurred. See EEOC Appeal Nos. 0120172470 and
0120181577 (August 7, 2018).

CONTENTIONS ON APPEAL

On appeal, Complainant argued at length that the Agency improperly dismissed several of his
complaints prior to investigation. Complainant attached the Agency’s March 14, 2016 decision
discussing the partial acceptance and dismissal, as well as the Commission’s August 7, 2018
decision finding that the settlement agreement was valid, and that no breach occurred.

The Agency did not provide an appellate brief.

ANALYSIS AND FINDINGS

It is clear from Complainant’s appeal that Complainant is attempting to relitigate matters from a
previously settled matter. Complainant is dissatisfied with the Agency’s March 14, 2016 decision
accepting and dismissing certain claims. However, despite prior opportunities to address his
dissatisfaction with the previously dismissed claims, Complainant chose not to. Complainant
cannot now attempt to relitigate claims that were previously adjudicated and resolved.

Accordingly, the appeal is DISMISSED.

2019003039

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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.

2019003039

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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.
Carlton M. Hadden, Director
Office of Federal Operations

August 21, 2019
Date