Odis S,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Aug 20, 2020

2020001582 (E.E.O.C. Aug. 20, 2020)

1 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Odis S,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Forest Service), Agency. Appeal No. 2020001582 Agency No. FS-2020-00026 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated December 12, 2019, 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 as a Cartographer at the Agency’s facility in Asheville, North Carolina. On November 26, 2019, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), sex (female), disability, age, and in reprisal for prior protected EEO activity. In its final decision, the Agency determined that Complainant’s complaint was comprised of the following claim: on several dates, Complainant was subjected to various acts of harassment, including but not limited to when management did not notify him of a detail opportunity for the GS-0301-11/12, Geospatial Systems Specialist Program Manager Coordinator position, located in the National Forest of North Carolina. 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 2020001582 The Agency dismissed the instant complaint on the grounds that this matter was previously raised in a prior complaint. The Agency reasoned “the same claim that is currently pending an Agency investigation under [Agency Case No.] FS-2019-0705. On December 9, 2019, the stated claim was added as an amendment to the Complainant’s prior EEO complaint FS-2019-00705 and referred for investigation as claim 3 in the prior complaint.” The instant appeal followed. On appeal, Complainant submits a copy of his formal complaint. In response, the Agency requests that we affirm its final decision. ANALYSIS AND FINDINGS We find that the Agency properly dismissed the instant complaint for stating the same claim that is pending in a prior complaint. The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that the agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission. The record contains a copy of the December 12, 2019 letter to Complainant informing him that the claim raised in the instant complaint will be accepted as an amendment to a prior EEO case, Agency Case No. FS-2019-00705 and will be accepted for investigation. Based on the foregoing, we find that the claim in the instant complaint has been previously raised and is pending before the Agency.2 Accordingly, we AFFIRM the Agency’s final decision dismissing Complainant’s complaint. 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. 2 We note that Complainant also raised marital status as a basis in the instant complaint. The Agency in its December 12, 2019 amendment letter properly found that the Commission does not have jurisdiction over claims based on marital status. 3 2020001582 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. 4 2020001582 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 August 20, 2020 Date