0120180705 & 0120180817
02-15-2018
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
Andres M,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120180705 & 0120180817
Agency No. ARIMCOMHQ17OCT03660 & ARIMCOMHQ17OCT03830
DECISION
Complainant filed a timely appeals with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decisions dated December 1, 2017 and December 8, 2017, dismissing his complaints 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 barred from the Agency's facility and 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was removed from his position for failure to maintain a necessary condition of employment, after his security clearance was revoked by the Personnel Security Appeals Board (PSAB).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.
Complainant contacted the EEO Counselor on October 4, 2017. On November 19, 2017, Complainant filed his first 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 September 7, 2010, the Colonel and other Agency knowingly violating the laws, policies and regulations and filing false charges to the Central Clearance Facility regarding the post bar.
On December 1, 2017, the Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency noted that even if the conduct were true, the practice would not constitute an unlawful employment practice under EEO statutes. The Agency also indicated that Complainant was no longer a federal employee as he was removed on October 17, 2012. Therefore, the Agency held that the alleged conduct did not affect a present term or condition of employment. In addition, the Agency held that the matter should be dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for alleging the same claim as his prior EEO complaints. The Agency noted that Complainant alleged discrimination regarding the September 2010 barring decision in at least four EEO complaints, one of which was resolved by a settlement agreement. As such, the Agency dismissed the compliant as a whole.
On October 16, 2017, Complainant contacted the EEO Counselor again. On November 24, 2017, Complainant filed a second 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 September 7, 2010, the former Garrison Commander and the Agency Labor Attorney violated the terms and conditions of his employment involving a post bar and security actions. Complainant indicated that he received documents pursuant to a Freedom of Information Act (FOIA) request which he believes supports his prior claims.
By final decision dated December 8, 2017, the Agency dismissed the second complaint pursuant to � 1614.107(a)(1) for failure to state a claim. The Agency noted that even if the conduct were true, the practice would not constitute an unlawful employment practice under EEO statutes. The Agency also indicated that Complainant was no longer a federal employee as he was removed on October 17, 2012. Therefore, the Agency held that the alleged conduct did not affect a present term or condition of employment. In addition, the Agency held that the matter should be dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for alleging the same claim as his prior EEO complaints. As such, the Agency dismissed the compliant as a whole.
Complainant appealed both final decisions to the Commission. We note Complainant filed briefs for each appeal. However, Complainant made essentially the same arguments with respect to the appeals. He asserted that he has sought all the evidence the Agency Officials used to justify his September 7, 2010 bar from the Agency's Fort Rucker facility. He asked that the Commission reverse the Agency's decision and investigate the matter. In response to Complainant's appeals, the Agency asked that the Commission affirm its decisions.
ANALYSIS AND FINDINGS
Upon review of the appeal files in EEOC Appeal Nos. 0120180705 and 0120180817, we find that these matters are better addressed in a consolidated decision. As such, we will address both appeals in this single decision.
The Agency's final decisions dismissed both complaints pursuant to 29 C.F.R. � 1614.107(a)(1). EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides for the dismissal of a complaint that states the same claim that is pending before or has been decided by the Commission or the Agency. To be dismissed as the "same claim," the present formal complaint and prior complaint must have involved identical matters. The Commission has consistently held that in order for a formal complaint to be dismissed as identical, the elements of the complaint must be identical to the elements of the prior complaint in time, place, incident, and parties. See Jackson v. Uniled States Postal Serv., EEOC Appeal No. 01955890 (Apr. 5, 1996).
In both complaints, Complainant alleged discrimination with respect to the Agency's decision to bar him from the facility in September 2010. Upon review, we find that the Agency properly dismissed the complaints pursuant to 29 C.F.R. � 1614.107(a)(1) for alleging the same claim in prior EEO complaints. We take administrative notice that Complainant sought to challenge the September 2010 barring action 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); Andres M. v. Dep't of the Army, EEOC Appeal No. 0120180608 (Feb. 13, 2018). Complainant appears to argue that he received additional information following his FOIA requests. We note that this Commission has held that "finding a new comparison... or arguing a different theory of law does not create a new claim." Doleshal v. Dep't of Health & Human Servs., EEOC Appeal No. 01A40020 (July 29, 2004); see also, Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120132933 (Jan. 14, 2014) ("Complainant cannot reassert his prior EEO complaint simply because he now has collected further evidence in support of his claim."). Hence, we find that the Agency's dismissal of both complaints was appropriate.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 decisions. 3
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
February 15, 2018
__________________
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 We note that Complainant has filed several complaints alleging the same series of events from 2010 and 2012. We caution Complainant that the EEOC Regulations provide for dismissal of complaints that are part of a "clear pattern of misuse of the EEO process for a purpose other than the prevention and elimination of employment discrimination." 29 C.F.R. �1614.107(a)(9). The criteria required to justify dismissal for abuse of process, as set forth in Commission decisions, must be applied strictly. Id. These criteria require: (i) Evidence of multiple complaint filings; and (ii) Claims that are similar or identical, lack specificity or involve matters previously resolved; or (iii) Evidence of circumventing other administrative processes, retaliating against the agency's in-house administrative processes or overburdening the EEO complaint system. We do not find that Complainant has met this level of conduct here.
3 Since the Commission has affirmed the Agency's dismissals of the complaint as a whole, we need not address the Agency's alternative bases for the dismissals.
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0120180705
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0120180705 & 0120180817