0120180506
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. 0120180506
Agency No. ARIMCOMHQ17SEP03131
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated November 7, 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 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was removed from his position for failure to maintain a necessary condition of employment, after his security clearance was revoked by the Personnel Security Appeals Board (PSAB).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 October 21, 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 the Agency issued him an unjust bar to post with no credible or substantiated evidence and used the bar to take away his security clearance causing financial loss and damage.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for stating the same claim in a prior complaint. The Agency noted in Agency Nos. ARIMCOMHQ13AUG03243 and ARIMCOMHQ17JAN00158, Complainant raised the same claim regarding the Agency's actions from September 7, 2010 through October 23, 2013, regarding the post bar.
Complainant appealed asserting that the documents he has since obtained show that for over seven years, he has been legally seeking out all evidence the Agency used to justify his bar from his facility on September 7, 2010. He asserted that this evidence was also used to justify revoking his clearance. He argued that the Agency has not provided justification for the bar. Further, he claimed that the Commission should review his claim of discrimination regarding the bar and the revocation of his security clearance. Therefore, Complainant requested that the Commission accept the matter for investigation into his claim of discriminatory security action on the part of the Agency. The Agency asked that the Commission affirm it dismissal.
ANALYSIS AND FINDINGS
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).
We take administrative notice that Complainant filed appeals of the Agency's dismissals of Agency Nos. ARIMCOMHQ13AUG03243 and ARIMCOMHQ17JAN00158 to the Commission. In Agency No. ARIMCOMHQ13AUG03243, Complainant alleged, among other claims, that the Agency subjected him to discrimination when he was barred from entering the Fort Rucker facility on September 7, 2010.2 In addition, in Agency No. ARIMCOMHQ17JAN00158, Complainant alleged that, through a Freedom of Information Act request provided in October 2016, Complainant learned that on or about September 2, 2010, senior agency official used "force protection threat" to order Complainant to be placed on indefinite suspension and was barred from his post. The Commission affirmed the Agency's dismissal of Agency No. ARIMCOMHQ17JAN00158. 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).
A fair reading of Complainant's prior EEO complaints and the complaint at hand indicate that Complainant has alleged discrimination regarding the same events, namely the Agency's decision in September 2010 to bar him from the Agency's facility and subsequent suspension and security clearance actions. Complainant's statement on appeal also indicates that the crux of the complaint at hand involves the same events surrounding the barring of him at the Agency's facility. Therefore, we find that the Agency's dismissal of the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) was appropriate.
CONCLUSION
The Agency's final decision to dismiss the complaint is AFFIRMED.
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 Complainant withdrew his appeal, as such EEOC Appeal No. 0120140484 was administratively closed on January 2, 2014.
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