0120171638
07-11-2017
Sol W.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sol W.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120171638
Agency No. 200105732016900022
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated February 22, 2017, 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., 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
At the time of events giving rise to this complaint, Complainant was a former VA employee of the Agency's VAMC Gainesville facility in Gainesville, Florida. He was seeking to be rehired.
On or around September 5, 2015, Complainant received a Priority Consideration Letter dated September 5, 2015. The letter advised Complainant that he had not been selected. Complainant requested information. In addition, Complainant stated that, on September 8, 2016, he received a letter from this Office advising him that if he wanted to file additional claims, he should contact an EEO Counselor. On September 25, 2016, Complainant initiated contact with an EEO counselor. He identified the date of the incident as occurring on September 8, 2016. On January 5, 2017, Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination on the bases of race (Caucasian), religion (Catholic), disability (unspecified), and age (over age 40) when, on or around October 2, 2015, Complainant was advised of his non-selection for a peer support position. He had been referred, but he was not selected as a priority placement applicant for the Peer Support Specialist Position, GS-102, advertised under Vacancy Announcement GS-15-JAS-1517921-BU-NC.
In addition, Complainant generally alleged that the Agency discriminated against him through "false reports, defamation of character, violation of the Security / HIPPA" rules, prohibited personnel practices, and improper lack of management, when the Human Resources Officer did not honor his VA-SF-50 resignation as promised in an earlier settlement agreement.
Complainant's breach of settlement agreement claims have been addressed in other EEOC appeals. See Horacio Z. v. Department of Veterans Affairs, EEOC Decision on Request for Reconsideration Number 0520160424 (September 3, 2016). On July 4, 2016, Complainant sought reconsideration of EEOC Appeal No. 0120161602 (June 23, 2016), which found that the Agency's decision not to select him did not constitute a breach. That breach decision pertained to Complainant's October 15, 2015 similar breach claim. He filed another second breach claim on January 5, 2016. Both breach claims were premised on the 2015 settlement agreement. Both breach claims were addressed in EEOC Appeal 0120161602.
The Agency dismissed the most recently filed complaint. The Agency reasoned that Complainant was expressing his dissatisfaction about the processing of previous EEO complaints. This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant states that he is appealing the Agency's decision because he believes that the Agency did not conduct an inadequate and proper investigation of his claims. He states that he is seeking help as a "Disabled Vietnam War Veteran."
In response, the Agency asserted that Complainant's initial contact with an EEO Counselor was untimely and that his appeal should be denied. The Agency also noted that Complainant previously raised the issue of his non-selection following his being given priority consideration under the terms of the settlement agreement.
ANALYSIS AND FINDINGS
The Commission regulations provide for the dismissal of claims based on dissatisfaction with the EEO investigation, claims that were the subject of prior litigation and claims that were not timely brought to the attention of an EEO Counselor.
As noted above, the non-selection decision following priority consideration was the subject of prior litigation. The position at issue appears to be the same. The incident at issue allegedly occurred on September 8, 2016. Our review of the record shows that the Agency issued Complainant several Priority Consideration Letters, on several different dates, including on September 5, 2015. He notes his EEO contact as having occurred on October 4, 2016. Complainant identifies the date of occurrence of the most recent date as November 2, 2016. For purposes of this analysis, we find that his EEO contact was timely made.
We also find that he has stated a claim in that he alleges that was discriminated against based on his age, race, religion, disability, and reprisal, when he was not selected. We find, however, that the allegations were the subject of prior litigation which found no breach and no discrimination on any of the alleged bases with regard to his non-selection claims and the same general claims at issue here.
Further, we note that we affirmed the dismissal of similar claims that were raised in EEOC Appeal 0120162859 with regard to Agency No. 2003-054902016103990 filed on July 20, 2016. See Sol W. v. Department of Veterans Affairs, EEOC Decision on Request for Reconsideration, denying reconsideration on April 5, 2017.
For the reasons stated here, we find that this new complaint fails to state a claim under the EEOC regulations because the claims are duplicative of claims already litigated and Complainant failed to show that he suffered any new harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a) (1) for failure to state a claim.
CONCLUSION
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 tends 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.
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
July 11, 2017
__________________
Date
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
0120171638
5
0120171638