[Redacted], Arthur J., 1 Complainant,v.John E. Whitley, Acting Secretary, Department of the Army, Agency.Download PDFEqual Employment Opportunity CommissionMar 23, 2021Appeal No. 2021001425 (E.E.O.C. Mar. 23, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Arthur J.,1 Complainant, v. John E. Whitley, Acting Secretary, Department of the Army, Agency. Appeal No. 2021001425 Agency No. ARCEMEMP20OCT03259 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated December 12, 2020, dismissing a formal complaint alleging 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., 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 Pumping Plan Supervisor at the Agency’s U.S. Army Corps of Engineers, Memphis District in Marianna, Arkansas. On November 27, 2020, Complainant filed a formal EEO complaint claiming that the alleging that the Agency subjected him based on race, color, age, and in reprisal for prior protected EEO activity when: a. on June 30, 2020, inflammatory and unsubstantiated claims and statements were made within Complainant’s 2020 Defense Performance Management and Appraisal (DPMAP) in an attempt to lay the groundwork to remove him; 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. 2021001425 2 b. on October 5, 2020, the Chief, Physical Support Branch, also Complainant’s supervisor, counseled a named Administrative assistant, also Complainant’s subordinate employee without Complainant’s knowledge; and c. the dismissal of his prior EEO complaint (ARCEMEMP20AUG02465) has caused a chilling effect on other Agency employees deterring them from using the EEO system. In its December 12, 2020 final decision, the Agency dismissed the complaint on multiple procedural grounds. First, the Agency dismissed claims a and b for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1), finding the Complainant was not aggrieved. Additionally, the Agency dismissed these claims, pursuant to 29 C.F.R. § 1614.107(a)(1), finding that the same matters were raised in a prior EEO complaint that was adjudicated in EEOC Appeal No. 2021000725. Finally, the Agency dismissed claim c, pursuant to 29 C.F.R. § 1614.107(a)(8), finding that Complainant was alleging dissatisfaction with the processing of a previously filed complaint. The instant appeal followed. ANALYSIS AND FINDINGS Previously Raised Claims - Claims a and b EEOC Regulation 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 the Commission. The Agency properly dismissed claims a and b for raising the same matter that was raised in a prior complaint (Agency Case No. ARCEMEMP20AUG02465). The record supports a determination that this prior complaint was adjudicated by the Commission on February 9, 2021, which affirmed the Agency’s dismissal of these claims. The record includes a copy of the Commission’s February 9, 2021 decision where Complainant alleged that he was discriminated against based on race, color, age, and in reprisal for prior protected EEO activity when inflammatory claims and statements were made in his DPMAP, and when, on October 5, 2020, Complainant’s supervisor counseled his subordinate employee without his knowledge. These claims are identical to the matters raised in the current complaint. Because we affirm the Agency’s dismissal of these claims as previously raised matters, we need not address the Agency’s alternative ground for dismissal of these claims. 2021001425 3 Dissatisfaction with Prior Complaint - Claim c EEOC Regulation 29 C.F.R. § 1614.107(a)(8) provides that an Agency shall dismissal claims alleging dissatisfaction with the processing of a prior complaint. A review of the record reveals that Complainant alleged dissatisfaction with the Commission’s decision to affirm the Agency dismissal in Complainant’s prior complaint, Agency Case No. ARCEMEMP20AUG02465. Therefore, we find that the Agency properly dismissed the instant claim c, pursuant to 29 C.F.R. § 1614.107(a)(8), as it concerns the outcome of his prior complaint. CONCLUSION The Agency’s final decision dismissing the instant formal complaint for the reasons stated above is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. 2021001425 4 In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2021001425 5 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 23, 2021 Date Copy with citationCopy as parenthetical citation