[Redacted], Rodrigo C, 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Sep 22, 2022

Appeal No. 2022004008 (E.E.O.C. Sep. 22, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rodrigo C,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2022004008 Agency No. ARUSAR22APR01898 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated June 10, 2022, dismissing a formal complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant was an applicant for Agency employment. On May 24, 2022, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination based on disability, age, and in reprisal for prior protected EEO activity. In its final decision, dated June 10, 2022, the Agency determined that Complainant’s complaint was comprised of the following claims: a. On February 23, 2022, [Complainant] learned [he was] ineligible for the GS-12 Budget Analyst position NCDE225178693749; b. On April 11, 2022, [Complainant] learned [he was] ineligible for Budget Analyst position NCDE22440286567R; 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 2022004008 c. On April 22, 2022, [Complainant] learned [he was] not referred for Budget Analyst position NCDE226114430938; d. On April 25, 2022, [Complainant] learned [he was] not considered for Budget Analyst position NCDE22627212574; and e. On May 18, 2022, [Complainant] learned [he was] not considered for Budget Analyst position NCDE226657175350. The Agency dismissed the formal complaint for misuse of the EEO process. The Agency reasoned that Complainant filed EEO complaints in 2017 and 2021, which were similar to the claims in the instant formal complaint. Specifically, the Agency stated “the five claims in [his] current complaint…are similar or identical to the nine claims of non-referral or ineligibility in [his] 2017 complaint (withdrawn at hearing). The total of twenty-one claims are template complaints, which lack specificity and differ only in the position, and vacancy announcement…[T]he allegations in each of the twenty-one claims in the 2017, 2021 and 2022 complaints are identical…” The instant appeal followed. In response, the Agency requests that we affirm its final decision dismissing the formal complaint. The Agency reiterates that the instant complaint is similar to allegations Complainant raised in a 2017 complaint, Agency Case No. ARUSAR17SEP03336 (withdrawn by Complainant at the hearings stage) and a 2021 complaint, Agency Case No. ARUSAR21AUG02644 (currently open according to the Agency). The Agency set forth that the instant claims lack specificity and appears to have a template format. The Agency asserts that Complainant has not provided specific information in support of his claims, such as how the Agency officials would know his age. The Agency asserts that Complainant has exhibited a clear intent to overburden the EEO process. ANALYSIS AND FINDINGS The Agency improperly dismissed the instant formal complaint for misuse of the EEO process. Abuse of process is defined as a clear pattern of misuse of the process for ends other than that which it was designed to accomplish. The Commission has a strong policy in favor of preserving a complainant’s EEO rights whenever possible. Strict criteria have been established by the Commission to determine whether a complaint, or a number of consolidated complaints should be dismissed for this reason under 29 C.F.R. § 1614.107(a)(9). This requires an analysis of whether the complainant evidences an ulterior purpose to abuse or misuse the EEO process. Numerous complaint filings alone are not a sufficient basis for determining that there has been an abuse of the process. EEOC Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110) (Aug. 5, 2015), at 5-20. The Agency must show evidence that somehow in filing numerous complaints a complainant specifically intended to misuse the EEO process. Id. 3 2022004008 Multiple filings on the same issues, lack of specificity in the allegations, and the filing of complaints on allegations previously raised, may be considered in deciding whether a complainant has engaged in a pattern of abuse of the EEO process. Id. The focus of the analysis is on the totality of the individual’s claims, circumstances, and intentions. Jeffrey J. v, Dep’t of the Navy, EEOC Appeal No. 2020004860 (Dec. 2, 2020) (agency argument that a complaint is identical or similar to the complainant’s prior complaints, which did not result in a discrimination finding is insufficient to support dismissal for misuse of process), see also Kenyatta S. v. Environ. Protection Agency, EEOC Appeal No. 2019003653 (Nov. 8, 2019) (concluding no misuse of the EEO process occurred despite complainant’s numerous EEO complaints, where a fair reading of the complete record reflects that complainant seems to genuinely believe that she is a victim of discrimination and that she will eventually remedy her situation through the EEO complaint process). As an initial matter, we find that while the claims in the instant complaint and in the 2017 and 2021 complaints, referenced by the Agency, may contain non-selection or non-referral claims, these claims all contain different vacancy announcements and thus are not identical.2 We acknowledge that Complainant has filed multiple complaints regarding non-selections. However, this action alone does not rise to the level of abuse of process. To the extent, that the Agency asserts that the instant complaint lacks specificity, we disagree. In the instant complaint, Complainant provided the dates he was informed of his non-selections and identified the vacancy announcements at issue. Complainant is not required to provide detailed evidence in support of his claims prior to an investigation (the Agency dismissed the instant matter prior to an investigation). The Agency, in its response brief, asserts that the instant matter is similar to Ebner-Cupples v. U.S. Postal Serv., EEOC Appeal No. 0120073731 (Oct. 15, 2009) and Abell v. Dep’t of the Interior, EEOC Appeal No. 01A33023 (May 13, 2004). We disagree. In Ebner-Cupples an AJ found that complainant’s discovery requests “clearly evince intent to create unnecessary expense for the Agency.” In the instant matter, the record currently before us is devoid of evidence that it is Complainant’s intent to overburden the EEO process. In addition, in Abell, an AJ set forth that complainant intends to continue to apply for agency positions he had no intention of accepting, for the sole purpose of filing EEO complaints when he was not selected for the positions. However, in the instant matter, we do not find, based on the record currently before us, that Complainant exhibited a purposeful intent to overburden the EEO process. 2 Commission records reflect that Complainant had other cases decided or open at the hearings stage and at the appeals stage before the Office of Federal Operations. The Agency does not address these other cases in its final decision or response brief. Therefore, we will not discuss them further herein. 4 2022004008 Accordingly, we REVERSE the Agency’s final decision dismissing the formal complaint and we REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER (E0618) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. 5 2022004008 Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 6 2022004008 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). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 22, 2022 Date