Wilfredo B.,1 Complainant,v.James E. McPherson, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Nov 16, 2020

2020004755 (E.E.O.C. Nov. 16, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wilfredo B.,1 Complainant, v. James E. McPherson, Acting Secretary, Department of the Navy, Agency. Appeal No. 2020004755 Agency No. DON 20-62381-01550 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated July 10, 2020, dismissing a formal 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the relevant time, Complainant worked as an Engine Utilityman at the Agency’s Military Sealift Command in Norfolk, Virginia. On June 10, 2020, Complainant filed a formal complaint (identified as Agency No. DON 20- 62381-01550) claiming that the Agency subjected him to discrimination based on race, sex, religion, color, age, and in reprisal for prior protected EEO activity. On July 10, 2020, the Agency issued a final decision. The Agency determined that the formal complaint was comprised of the following claims: 1. On January 17, 2020, Complainant received an email [from a named EEO Specialist] in regard to closing a previous EEO contact after he informed her he was on leave and he did not have to respond when he is on leave. 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. 2020004755 2 2. On April 6, 2020, he requested resolution for an EEO Complaint [Agency Case No. DON 17-62381-00110] due to dissatisfaction with the EEO process. The Agency dismissed the formal complaint for alleging dissatisfaction with the processing of previously filed EEO complaints. The Agency also dismissed Complainant’s complaint for failure to state a claim. The instant appeal followed. ANALYSIS AND FINDINGS The Agency properly dismissed the formal complaint for alleging dissatisfaction was previously filed complaints. EEOC Regulation 29 C.F.R. § 1614 107(a)(8) provides that an Agency shall dismiss claims alleging dissatisfaction with the processing of a prior complaint. Dissatisfaction with the EEO process must be raised within the underlying complaint, not as a new complaint. See EEOC - Management Directive 110 (MD-110) 5-23, 5-25 to 5-26 (Nov. 9, 1999). Upon review of the record, Complainant, in claim (1), was seeking documents and information from the Agency related to a prior EEO case (identified as Agency Case No. DON 16-62381- 02279) and had concerns with the manner in which an EEO Specialist processed this request.2 In addition, Complainant, in claim (2), is seeking resolution of another prior EEO case (identified as Agency Case No. DON 17-62381-00110). Based on the foregoing, we find these matters are alleging dissatisfaction with the processing of prior EEO complaints. CONCLUSION Accordingly, we AFFIRM the Agency’s final decision dismissing the instant complaint (DON 20- 62381-01550).3 2 The record reflects that the Agency initially dismissed Agency Case No. DON 16-62381-02279 which Complainant appealed to EEOC. We reversed the Agency’s procedural dismissal and remanded the matter to the Agency for further processing. EEOC Appeal No. 0120170327 (March 3, 2017). The Agency subsequently issued a final decision finding no discrimination which was appealed. We affirmed the Agency’s final decision finding no discrimination for Agency Case No. 16-62381-02279. EEOC Appeal No. 0120180737 (April 26, 2019). Our records do not reflect that Complainant filed a request for reconsideration. 3 Because we affirm the Agency’s dismissal of the instant complaint (DON 20-62381-01550) for the reason set forth herein, we need not address the Agency’s alternate grounds for dismissal. 2020004755 3 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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, 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). 2020004755 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 November 16, 2020 Date