Fredrick A.,1 Complainant,v.William P. Barr, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

May 26, 2020

2020001881 (E.E.O.C. May. 26, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Fredrick A.,1 Complainant, v. William P. Barr, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency. Appeal No. 2020001881 Agency No. FBI-2019-00326 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated December 19, 2019, 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. BACKGROUND Complainant is a former employee of the Agency. On September 30, 2019, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), religion (Muslim), and in reprisal for prior protected EEO activity. In its final decision dated December 19, 2019, the Agency determined that Complainant’s complaint was comprised of the following claim: an Agency attorney, who is representing the FBI in a previously filed EEO complaint by Complainant, made improper legal arguments and his Motion for Summary Judgment included improper exhibits. The Agency dismissed Complainant’s complaint for alleging dissatisfaction with the processing of a prior complaint. 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. 2020001881 2 The Agency reasoned that to the extent Complainant was alleging dissatisfaction with an Agency attorney’s actions in a prior EEO complaint, Complainant was alleging a spin-off complaint. The Agency also dismissed Complainant’s formal complaint for failure to state a claim. The Agency reasoned that Complainant did not allege a harm or loss with respect to a term, condition, or privilege of his former employment. Regarding the basis of reprisal, the Agency found that the alleged incidents would not reasonably likely deter Complainant or others from engaging protected activity. The instant appeal followed. On appeal, Complainant asserts that he is not dissatisfied with the processing of his prior complaint but perceives it as a new claim. ANALYSIS AND FINDINGS The Agency properly dismissed the instant complaint for alleging dissatisfaction with the processing of a previously filed complaint. 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. In the instant matter, we find Complainant is challenging actions by an Agency attorney in connection with a previously filed EEO complaint. Specifically, according to the EEO Counselor’s Report, Complainant alleged that the Agency attorney filed an improper motion for summary judgment in a prior EEO complaint, Agency Case No. FBI-2016-00209.2 The EEO Counselor’s Report sets forth that one of the exhibits that was part of the Agency’s Motion for Summary Judgement contained an invalid document. Complainant’s formal complaint reiterates these claims. Thus, we find that Complainant is alleging dissatisfaction with the actions of an Agency attorney with respect to a prior complaint and that these matters are properly dismissed. See Wayne C. v. Dep’t of Veteran Affairs, EEOC Appeal No. 0120171303 (May 18, 2017) (affirming agency’s dismissal for alleging dissatisfaction with a previously filed complaint when a complainant alleged that an agency attorney failed to respond to a Motion to Compel and conspired against him in the hearing process regarding a prior complaint). The Agency’s final decision properly informed Complainant that these matters may be raised before the EEOC AJ assigned to the prior complaint rather than filing a prior complaint. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (rev. Aug. 5, 2015), Ch. 5(III)(F). Accordingly, we AFFIRM, for the reasons set forth herein, the Agency’s final decision dismissing Complainant’s complaint.3 2 The record reflects that Agency Case No. FBI-2016-00209 is currently pending before an EEOC AJ, EEOC Hearing No. 570-2017-00465X. 3 Because we affirm the Agency’s dismissal for the reason set forth herein, we need not address the Agency’s alternate grounds for dismissal. 2020001881 3 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. 2020001881 4 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 26, 2020 Date