[Redacted], Brenton O., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Department of Defense Education Activity), Agency.

Equal Employment Opportunity Commission

Sep 7, 2022

Appeal No. 2020004560 (E.E.O.C. Sep. 7, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Brenton O.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Department of Defense Education Activity), Agency. Appeal No. 2020004560 Hearing No. 570-2019-00506X Agency No. DE-FY19-063 ORDER OF DISMISSAL Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 18, 2020, final order concerning his equal employment opportunity (EEO) complaint alleging 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. During the period at issue, Complainant worked as a Principal at the Agency’s Headquarters in Alexandria, Virginia. On January 7, 2019, Complainant initiated EEO Counseling by submitting a Pre-complaint Intake Form. Complainant alleged that the Agency subjected him to discrimination on the bases of race (African-American), sex (male), religion (Christian), color (Brown), age (54), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964. Complainant identified the underlying issue as retaliation when three of his previous EEO complaints were dismissed by the Agency, but a case in which he was named as the responsible management official was processed based on “hearsay”. Complainant added that he was not afforded an opportunity to have his statements substantiated by others, but the complainant in the case against him was allowed to have witness statements. 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. 2020004560 2 When asked to provide a statement of allegations, Complainant identified himself as a member “of the protected class group African American/Black internal employees who worked for the federally funded activity identified as DoDEA.” Complainant averred that the Agency was applying a practice that adversely affected the putative class of African American/Black internal employees, which violated Agency policies. Finally, Complainant reiterated that his record was tarnished based on fraudulent claims and hearsay without the opportunity for rebuttal. On January 8, 2019, Complainant requested that the Agency transmit the pre-complaint for processing as a class complaint. On January 31, 2019 the Agency transmitted the complaint file to an EEOC Administrative Judge (AJ) for certification of the class action. By letter to Complainant the same day, the Agency advised that since Complainant moved for class certification in his Pre-complaint Intake Form, no EEO counseling would be conducted. On May 4, 2020, Complainant filed a civil action (1:20CV509-AJT-JFA) in the United States District Court for the Eastern District of Virginia, Alexandria Division. A review of the of the complaint filed in the civil action reflects that the claims raised in the civil action are the same as those raised in the EEO complaint currently pending appeal and considered by an EEOC Administrative Judge (AJ) regarding Complainant’s class complaint.2 EEOC Regulation 29 C.F.R. § 1614.409 provides: Filing a civil action under § 1614.407 or § 1614.408 shall terminate Commission processing of the appeal. A Commission decision on an appeal issued after a complainant files suit in district court will not be enforceable by the Commission. If private suit is filed subsequent to the filing of an appeal and prior to a final Commission decision, the complainant should notify the Commission in writing. Accordingly, the Commission will dismiss a pending appeal/petition under these circumstances to prevent a complainant from simultaneously pursuing both administrative and judicial remedies on the same matters, wasting resources, and creating the potential for inconsistent or conflicting decisions, and in order to grant due deference to the authority of the federal district court. See, e.g., Wayne C. v. Dep’t of Vet. Aff., EEOC Appeal No. 2020002855 (Oct. 6, 2020); Bart L. v. Dep’t of Agric., EEOC Appeal Nos. 2020000098, 2020000100 (Mar. 10, 2021); Von E. v. Dep’t of the Treasury, EEOC Appeal No. 2020004947 (Feb. 17, 2022). Following a review of Civil Action No. 1:20CV509-AJT-JFA, the Commission has determined that the above-referenced civil action raised the same claims as the EEO complaint currently on appeal. CONCLUSION 2 On June 17, 2020, an EEOC AJ (AJ2) issued a decision denying Complainant’s request for class complaint certification. AJ2 determined that Complainant failed to satisfy the elements of commonality and typicality necessary for certification of a class. 2020004560 3 Accordingly, EEOC Appeal No. 2020004560 must be, and is, DISMISSED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2020004560 4 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 7, 2022 Date