0120171420
05-12-2017
Bernard S.,1 Complainant, v. Sean J. Stackley, Acting Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Bernard S.,1
Complainant,
v.
Sean J. Stackley,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 0120171420
Agency No. 174523A00454
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated January 30, 2017, dismissing his 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Pipefitter Helper at the Agency's at the Agency's Puget Sound Naval Shipyard facility in Bremerton, Washington.
On December 22, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability and reprisal by sending/or planning to send his EEO complaints to the EEOC San Francisco Office in order to be delayed and then dismissed; an EEOC Administrative Judge (AJ) retaliated against him for unknown reasons when he shared his EEO complaints with unknown individuals; and an EEOC AJ overruled and denied numerous requests to have his EEO complaints transferred to another venue.
On the same date, Complainant filed five additional complaint forms. The issue raised in each of these complaints was identical to Complaint 1 with the exception that in each a different official was named as being responsible for the discrimination/retaliation.
The Agency consolidated2 the six complaints together for processing and, in a single decision, dismissed them, pursuant to 29 C.F.R. � 1614.107(a), for failure to state a claim, expressing dissatisfaction with the processing of a previously filed complaint, untimeliness, and for misuse of the EEO process.
The instant appeal followed. On appeal, Complainant continues to express his dissatisfaction with the way in which his prior EEO complaints were processed and with the EEO complaint process in general.
ANALYSIS AND FINDINGS
As an initial matter, we find the Agency properly consolidated the six complaints for processing given that they raise the same claim, albeit with different individuals named as the alleged discriminating official. See 29 C.F.R. � 1614.606.
"Spin Off" Complaints
29 C.F.R. � 1614.107(a)(8) provides that the Agency shall dismiss a complaint that alleges dissatisfaction with the processing of a previously filed complaint. These types of complaints are commonly referred to as "spin off" complaints, and they do not state an independent claim.
To the extent that Complainant is alleging in the current complaints that her previous EEO complaints were improperly processed by both Agency EEO officials and EEOC Administrative Judges,3 we agree with the Agency that they should be viewed as spin-off complaints subject to dismissal under 29 C.F.R. � 1614.107(a)(8). Complainant should raise any claims regarding the processing of a complaint while that complaint is being processed, not in a new complaint. According to EEOC's Management Directive (MD-110) at 9-16, such claims should be processed as part of the original complaint. If a final Agency decision is issued on a complaint where a complainant has an issue with its processing, he or she may also raise his concerns in an appeal.
Failure to State a Claim
An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
Here, we also concur with the Agency that Complainant failed to alleged facts, which if proven true and considered together, would establish that she suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. In his complaint, Complainant has not provided any explanation of how he was harmed or when. We also note that, to the extent that an EEOC Administrative Judge is named as one of the alleged discriminating officials, the Agency cannot be held liable for the actions of the judge. The complaints, as written, without more, simply do not state a viable claim of discrimination or unlawful retaliation.
Accordingly, the Agency's final decision dismissing Complainant's complaints is AFFIRMED.4
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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. The requests 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 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
May 12, 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 The Agency indicated it amended Complaint 1 to include the other five forms. We find that, in effect, the Agency consolidated the formal complaints because they raised the same claim, albeit with different alleged discriminators.
3 There appears to be confusion by Complainant about the Agency's EEO office. Those employees are employed by the Agency, not the EEOC. However, when a complaint is in the hearing process, it is then under the jurisdiction of an EEOC Administrative Judge. When a final Agency decision is issued, whether or not there had been a hearing, a complainant may then appeal to the EEOC's Office of Federal Operations and raise any concerns about the hearing process, as well as the Agency's processing of the complaint.
4 Because we are affirming the dismissal of the complaints as spin-offs and for failure to state a claim, we do not need to address the Agency's alternative grounds for dismissal concerning timeliness and abuse of process.
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