Hershel B.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Threat Reduction Agency), Agency.

Equal Employment Opportunity Commission

Mar 17, 2017

0520170116 (E.E.O.C. Mar. 17, 2017)

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

Hershel B.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Defense Threat Reduction Agency),
Agency.

Request Nos. 0520170116, 0520170117, 0520170118, 0520170119

Appeal Nos. 0120161815, 0120161816, 0120161817, 0120161818

Agency Nos. DTRA-16-J9-003; DTRA-16-J9-004; DTRA-16-J9-005; DTRA-16-J9-006

DECISION ON REQUEST FOR RECONSIDERATION

Complainant requested reconsideration of the consolidated decisions in EEOC Appeal Nos.
0120161815, 0120161816, 0120161817, 0120161818 (October 7, 2016). Pursuant to 29
C.F.R. § 1614.606, we consolidate the four requests into one decision. EEOC Regulations
provide that the Commission may, in its discretion, grant a request to reconsider any previous
Commission decision where the requesting party demonstrates 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. See 29
C.F.R. § 1614.405(c).

Complainant filed four formal complaints alleging that the Agency subjected him to
discrimination on the bases of national origin (Hispanic), disability, age (54), and in reprisal
for prior protected EEO activity when:

1. The Agency failed to properly credit him for his time served fighting forest fires
and his time served since September 30, 2014, thus adversely affecting his
cumulative Federal Time-In-Service.

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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2. From an unspecified date in September 2012 to September 30, 2014, Complainant
has been subject to disparate treatment after acquiring injuries due to falling down
the stairs at the Agency’s facility.
3. On an unspecified date in February 2014, Complainant was subjected to
whistleblower retaliation for contacting the Agency Inspector General regarding the
fraudulent loss of $100,000 and abuse of government time.
4. A witness Complainant called to participate in his Merit Systems Protection Board
(MSPB) appeal was intimidated by the Agency and subsequently removed from
federal service.

The Agency dismissed claims (1) and (2) for untimely EEO Counselor contact. The Agency
dismissed claims (2) and (3) for raising the same claims in an appeal before the MSPB. The
Agency dismissed claim (4) for failure to state a claim. In addition, the Agency dismissed
claims (2) and (3) for abuse of process.

In our previous consolidated decision, the Commission found claim (1) constituted a collateral
attack on another proceeding. The Commission noted Complainant should raise his concerns
with regard to his Federal Time-in-Service with the Office of Personnel Management (OPM)
as it relates to the terms of his disability retirement. Thus, the Commission affirmed the
dismissal of claim (1) for failure to state a claim.

The Commission also noted the MSPB AJ’s decision indicated Complainant alleged that the
Agency failed to accommodate him due to his injury in “late 2012” at which point he began
seeking reasonable accommodation. The Commission noted that in his MSPB appeal,
Complainant alleged that he was subjected to whistleblower retaliation for filing a complaint
with the Inspector General. The Commission found that the MSPB AJ addressed
Complainant’s claims and thus, determined claims (2) and (3) were appropriately dismissed for
raising the same claims in an appeal before the MSPB.

Additionally, the Commission determined the proper forum for Complainant to have raised his
claim regarding the witness for his MSPB appeal was with the MSPB itself. Thus, the
Commission found claim (4) was properly dismissed for failure to state a claim.

In his request for reconsideration Complainant raised issues raised in his previous appeal.
Specifically, with regard to claim (1), Complainant stated although he prevailed on
whistleblower retaliation, the Agency has refused to give him credit for his time in service.
Complainant claims the Agency refused to comply with the Orders of the MSPB. With regard
to claim (2), Complainant noted since 2012 the Agency has denied him reasonable
accommodations. Complainant stated his claims for disability discrimination and hostility were
not addressed by the MSPB AJ. He stated that he had to appeal to the full Board to win a
proper decision. Complainant also stated the MSPB has still not taken appropriate action
against the Agency for any of his charges. With regard to claim (3), Complainant states that
although he prevailed on this after years of litigation and hearings before the MSPB, the MSPB
has not carried out its own decision and held the Agency responsible. With regard to claim
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(4), Complainant states that he could not have raised this issue with the MSPB because the
actions occurred after the hearing closed.

We find that many of these arguments show that the claims involve matters raised or matters
more appropriately raised with the MSPB. We note regarding claim (4) that such a claim fails
to state a claim because the alleged harm is to a witness who could file his or her own
administrative EEO complaint if the witness wished. The Commission emphasizes that a
request for reconsideration is not a second appeal to the Commission. Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (Aug. 5, 2015),
at 9-18; see, e.g., Complainant v. Dep't of Agric., EEOC Request No. 0520070736 (Aug. 20,
2007). Rather, a reconsideration request is an opportunity to demonstrate that the appellate
decision involved a clearly erroneous interpretation of material fact or law, or will have a
substantial impact on the policies, practices, or operations of the Agency. Complainant has not
done that in his requests for reconsideration.

After reviewing the previous decision and the entire record, the Commission finds that the
requests fail to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the
Commission to deny the requests. The consolidated decision in EEOC Appeal Nos.
0120161815, 0120161816, 0120161817, and 0120161818 remains the Commission's decision.
There is no further right of administrative appeal on the decision of the Commission on this
request.

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)

This decision of the Commission is final, and there is no further right of administrative appeal
from the Commission’s decision. 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.

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
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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

March 17, 2017
Date