0120171780
09-08-2017
Ethan M,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Office of the Chief Financial Officer), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ethan M,1
Complainant,
v.
Sonny Perdue,
Secretary,
Department of Agriculture
(Office of the Chief Financial Officer),
Agency.
Appeal No. 0120171780
Agency No. USDA-ODFO-2017-0009
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 21, 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. 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 the Acting Deputy Administrator for Operations and Management at the Agency's Rural Development in Washington, D.C.
On February 28, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), sex (male), disability, and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 & Section 501 of the Rehabilitation Act of 1973 when:
1. The Employment Adjudication Division (CAD) made Complainant wait 24 months, and counting, to be made whole after a Final Agency Decision (FAD) on the merits of EEO Complaint Number RD-CF-2013-00420 which was issued on November 21, 2014.
2. On November 21, 2014, the FAD issued on the merits of EEO Complaint Number RD-CF-2013-00420 was substantially delayed and ultimately issued with a pretextual "Notice" that was written to conceal a true discriminatory motive; and
3. On October 5, 2014, Complainant was issued a document titled "Final Agency Decision on Request for Compensatory Damages" for EEO Complaint Number RDCF-2013-00420, which he believed was discriminatory, harassing and retaliatory.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(8). The Agency noted that Complainant quite specifically alleged the issues cited in his formal complaint related to the processing of his prior complaint, namely Agency EEO Complaint Number RD-CF-2013-00420. In accordance with EEOC Management Directive 110, the matter was referred to the Agency official who is responsible for quality of complaint processing. As such, the Agency dismissed the complaint as a whole.
Complainant appealed. He asserted the Agency's dismissal was improper. His assertion is that he has been retaliated for asserting his EEO rights. Complainant indicated that this was part of a broader scheme by Agency's top management against those employees who exercise their rights filing EEO complaints. He recounted the alleged harassment he experienced and asked that the Commission reverse the Agency's final decision.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(8) provides that an agency shall dismiss a complaint that alleges dissatisfaction with the processing of a previously filed complaint. Chapter Five of the EEOC Management Directive 110 (MD-110) (Aug. 5, 2015) defines such a complaint as a "spin off" complaint. MD-110 indicates further that "spin-off" complaints should be referred to the agency official responsible for complaint processing and/or processed as part of the original complaint. See id.; see also Complainant v. Dep't of Health and Human Serv., EEOC Appeal No. 05910159 (Feb. 11, 1991). Clearly Complainant has alleged that he was subjected to unlawful retaliation regarding the subsequently processing of his prior EEO complaint. The Agency has properly identified the matter as a claim regarding complaint processing and has referred the matter for internal processing. As such, we find that the Agency's dismissal was appropriate.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaints is AFFIRMED.
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.
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
September 8, 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.
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