0120180505
02-13-2018
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. 0120180505
Agency No. ARIMCOMHQ17AUG02773
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated October 20, 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was removed from his position for failure to maintain a necessary condition of employment, after his security clearance was revoked by the Personnel Security Appeals Board (PSAB).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 August 7, 2017, Complainant contacted the EEO Counselor alleging discrimination. Specifically, Complainant asserted that he became aware that 29 pages of documents existed pending signature and legal review with respect to a Freedom of Information Act (FOIA) request of records involving the Agency's decision to bar him from the installation. Complainant had previously been told that the records did not exist in his prior FOIA request.
When the matter was not resolved informally, on September 28, 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: he was discriminated against by being denied for seven years access to evidence withheld by the Agency regarding his post bar and security clearance action. Complainant alleged that these withholdings have denied him due process and injured him by income and reputation.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim and for stating the same claim in a prior EEO complaint. The Agency noted that Complainant was removed from federal employment in October 2012. As such, the Agency held that the claim alleged fails to affect a term or condition of employment. In addition, the Agency noted that the complaint alleged discrimination with respect to Complainant's FOIA request. The Agency noted that such a claim is outside of the purview of Title VII. Instead, Complainant should have raised his claim under the FOIA's own procedures for violations. The Agency also noted that Complainant has raised the same claim with the Agency in a prior EEO complaint. As such, the Agency dismissed the complaint as a whole.
Complainant appealed asserting that his FOIA request was almost a year old and the responses have changed three times in seven years. He indicated that the FOIA release of July 31, 2017, was changed to include 29-pages. Complainant argued that these responses cast serious doubt on the Agency's credibility and motives to justify the Agency's decision to bar him from the facility and to remove his security clearance. Complainant asked that the Commission accept the matter for investigation and review the Agency's illegal actions. The Agency asked that the Commission affirm its decision dismissing the complaint.
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 Complainant has alleged that he was subjected to discrimination based on the Agency's alleged failure to provide documents in response to his FOIA requests. We find that this matter is outside the jurisdiction of the EEOC. The Commission does not have jurisdiction over the processing of FOIA requests. Instead, persons having a dispute regarding such requests should bring any appeals about the processing of his or her FOIA requests under the appropriate FOIA regulations. Gaines v. Dep't of the Navy, EEOC Request No. 05970386 (June 13, 1997). As such, we find that the Agency's dismissal of the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) 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 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
February 13, 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 Since the Commission has affirmed the Agency's dismissal of the complaint as a whole, we need not address the Agency's alternative bases for dismissal.
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