Complainant,v.Michael B. Donley, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Mar 20, 2013

0120121823 (E.E.O.C. Mar. 20, 2013)

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

Complainant,

v.

Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.

Appeal No. 0120121823

Agency No. 9Z0J11016

DECISION

Complainant filed a timely appeal with this Commission from the Agency’s decision dated
January 20, 2012, 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.
The Agency’s dismissal of the complaint is AFFIRMED.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Demand
Reduction Program Manager at the Agency’s Eglin Air Force Base, Florida. On November 8,
2011, Complainant filed a formal complaint alleging that the Agency subjected him to
discrimination on the basis of his sex (male) when on or about May 17, 2011, Complainant
learned that while his employment had been terminated for submitting un-testable samples to
the drug lab, his co-worker (female) had instead been transferred to another position after
committing the same errors.

The Agency dismissed the complaint on the basis that Complainant had already raised this
matter in an appeal to the Merit Systems Protection Board (MSPB), citing 29 C.F.R.
§1614.107(a)(4). The Agency noted that the MSPB had addressed the basis of sex with respect
to Complainant’s termination. On appeal, Complainant contends that the Agency did not
transfer his co-worker until after he appealed his case to the MSPB and therefore he is entitled
to raise this as a new claim before the Commission.

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ANALYSIS AND FINDINGS

The regulation set forth at 29 C.F.R. § 1614.107(a)(4) provides that an agency may dismiss a
complaint where the complainant has raised the matter in an appeal to the MSPB. A mixed
case appeal is an appeal filed with the MSPB in which the aggrieved alleges than an agency
action was effected, in whole or in part, because of discrimination on the bases of race, color,
religion, sex, national origin, disability, age, or genetic information. The regulation at 29
C.F.R. § 1614.302(b) provides that an aggrieved person may file a mixed case complaint with
an agency or appeal on the same matter with the MSPB, but not both.

The record indicates that on October 29, 2007, Complainant filed an appeal with the MSPB,
(Docket No. AT-0752-08-0082-I-1) concerning his removal. Specifically, Complainant alleged,
in part, that the Agency subjected him to unlawful sex discrimination when it terminated his
employment. Further, we note that the similarly situated employee outside Complainant’s
protected class that Complainant identified in his MSPB appeal as being treated differently,
was the same co-worker identified in the instant complaint. On February 25, 2008, the MSPB
issued an Initial Decision, affirming the Agency’s action. Here, although Complainant
contends that he was not aware that the Agency chose to transfer his co-worker until May
2011, we find that Complainant is challenging the same action as was at issue in his MSPB
appeal, namely his termination.1

As such, we find that Complainant’s complaint was properly
dismissed for his prior election to proceed before the MSPB.
CONCLUSION

The Agency’s dismissal of the complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 We note that Complainant previously raised the matter of his termination before the
Commission and on appeal we affirmed the Agency’s dismissal, finding that Complainant had
elected to file an appeal with the MSPB on the same matter. v. Department
of the Air Force, EEOC Appeal No. 0120081527 (May 20, 2008). Therefore, this complaint is
also properly dismissed for stating the same claim as previously raised and adjudicated
pursuant to 29 C.F.R. §1614.107(a)(1).
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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 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
0120121823

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the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

March 20, 2013
Date