Mark Wonders, a/k/a Andres M,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJul 26, 2017
0120180608 (E.E.O.C. Jul. 26, 2017)

0120180608

07-26-2017

Mark Wonders, a/k/a Andres M,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Mark Wonders, a/k/a

Andres M,1

Complainant,

v.

Dr. Mark T. Esper,

Secretary,

Department of the Army,

Agency.

Appeal No. 0120180608

Agency No. ARIMCOMHQ17JUN02285

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated September 22, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Public Affairs Specialist at the Agency's Public Affairs Office facility in Fort Rucker, Alabama.

In September 2010, Complainant was issued an indefinite suspension of his security clearance. On October 17, 2012, Complainant was removed from his position for failure to maintain a necessary condition of employment, after his security clearance was revoked by the Personnel Security Appeals Board (PSAB). Complainant was subsequently barred from the installation. Complainant appealed the removal to the Merit Systems Protection Board (MSPB) which determined the removal was appropriate.

On September 1, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, on June 20, 2017, the Garrison Commander issued a denial action concerning Complainant's June 5, 2017, justification for rescission of the post bar despite his 32 exhibit, 100-page document requesting his access to the Agency's facility and reversing the Agency's decision from September 2010 barring him from Fort Rucker. Complainant noted that in February 2017, the Garrison Commander had told him that she does not question the decision of former commanders nor does she look through previous investigations regarding the initiation of a bar.

The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency indicated that Complainant was barred by the Agency on September 7, 2010, due to aggressive, intimidating and threatening behavior. Subsequently on October 17, 2012, Complainant was removed from federal service and is no longer a federal employee. Therefore, even if the events occurred as alleged by Complainant, the Agency held that Complainant had not shown that the alleged event would have an effect on a term or condition of employment. As such, the Agency dismissed the complaint. The Agency also stated that the matter was moot and dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(4) without specific argument.

CONTENTIONS ON APPEAL

Complainant appealed. Complainant challenged the Agency's assertion of "facts" claiming that the alleged behavior did not occur as the Agency portrayed. He argued that the Agency concocted the bogus bar to justify his removal of his security clearance and subsequent removal action. Complainant challenged the Garrison Commander's decision not to review the barring decision from September 2010. Complainant argued that he has been aggrieved noting that terminated employees may still have standing. He claimed that he would still be an employee as remedy for the alleged discrimination. Further, Complainant indicated that the matter was not moot for there is relief available to him in the event he prevailed. As such, Complainant asked that the Commission reverse the Agency's final decision dismissing the complaint at hand.

The Agency responded to Complainant's appeal. The Agency argued that Complainant failed to show that he was an "aggrieved employee" for he has not suffered any harm or loss with respect to a term, condition or privilege of employment. The Agency noted that Complainant has not been an employee since October 2012. Further, the Agency indicated that Complainant had his security clearance revoked and subsequently removed from service. Therefore, the Agency concluded that Complainant was not aggrieved and that the matter should be dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. In addition, the Agency noted that due to Complainant's termination in October 2012, the matter was also moot and the complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(4).

ANALYSIS AND FINDINGS

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails 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, disabling condition, genetic information, or reprisal. 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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).

Upon review of the record, we find that the Agency's dismissal of the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) was appropriate. The Agency correctly indicated that Complainant has not been an employee since October 2012. Further, the relief sought by Complainant would be reinstatement to his prior position. However, we find that the claim of discrimination involved the Garrison Commander's refusal to review the barring action from September 2010. Even if Complainant were to prevail, such a claim would not provide Complainant with reinstatement to his prior employment. Complainant was terminated in October 2012 following a series of events of which included the September 2010 barring action. Therefore, we find that the Agency correctly stated that Complainant has not shown any harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy.2

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.

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

__________________

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 In addition, we take administrative notice that if Complainant sought to challenge the September 2010 barring action, he has previously alleged discrimination on this matter in prior EEO complaints. See Andres M. v. Dep't of the Army, EEOC Appeal No. 0120171914 (July 26, 2017) request for recons. denied EEOC Request No. 0520170555 (Dec. 14, 2017), see also Andres M. v. Dep't of the Army, EEOC Appeal No. 0120180506 (Feb. 13, 2018).

---------------

------------------------------------------------------------

---------------

------------------------------------------------------------

2

0120180608

2

0120180608