Carmelita S.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Apr 4, 2018

0520180022 (E.E.O.C. Apr. 4, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Carmelita S.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.

Request No. 0520180022

Appeal No. 0120171936

Agency No. ARCEFTW17JAN00244

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120171936 (August 2, 2017). EEOC
Regulations provide that the Commission may, in its discretion, grant a request to reconsider any
previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting
party demonstrates 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. See 29 C.F.R. § 1614.405(c).

In the underlying complaint, Complainant alleged that the Agency discriminated against her
based upon disability (mental) and reprisal (prior EEO activity) when: (1) on November 21,
2016, Complainant learned that the Agency contacted her medical provider and requested
medical documents in violation of 29 C.F.R. § 1630; and (2) on November 29, 2016, during a
witness interview of Complainant’s father, the Assistant Division Counsel for the Agency shared
embarrassing and personal information regarding Complainant with the intent to harass
Complainant.

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.
0520180022

2
Our previous decision affirmed the Agency’s dismissal based on the conclusion that her
complaint raised “spin-off” claims in accordance with 29 C.F.R. § 1614.107(a)(8). Claim 1 was
related to an appeal pending with the Merit Systems Protection Board (MSPB), and we found
that Complainant’s concerns regarding the Agency’s behavior during discovery should be raised
with the MSPB Administrative Judge presiding over that appeal. Additionally, the previous
decision found that claim 2 was also raised in the context of another pending EEO complaint,
which was before an EEOC Administrative Judge (AJ).

In her request for reconsideration, Complainant disagrees with the previous decision and argues
that a “spin-off” complaint can only be found when a complainant alleges discriminatory and
retaliatory conduct that happens while the Agency maintains jurisdiction of the complaint
“processing.” She argues that when in another process such as the MSPB appeal process, any
claim of improper conduct by the Agency within the context of that process cannot be properly
classified as a spin-off complaint, and dismissed, as envisioned in 29 C.F.R. § 1614.107(a)(8).
Complainant advocates for her position that these claims can be raised in an independent
complaint and processed accordingly.

The Agency asserts that since Complainant’s allegations relate to Agency conduct during
complaint processing under the jurisdiction of a MSPB AJ and of an EEOC AJ, they cannot be
processed as an independent complaint and were properly dismissed as a spin-off complaint.

We find that Complainant’s arguments and cited case law are distinguishable from the facts
presented herein, and are not persuasive. Under our previous case law and guidance in the Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at
Chap. 5 § IV.D (Aug. 5, 2015), disputes and dissatisfaction with the processing of a complaint,
including conduct of Agency personnel, should be raised within the context of that complaint
with the Agency official most likely to be able to remedy the issue. The EEO MD-110, at 5-29,
further specifies that if the Agency has not resolved those concerns, a complainant may present
their concerns to the Commission when the complaint is pending with an EEOC AJ or with the
Commission on appeal. We find that likewise, any concerns about an Agency’s behavior in
discovery during an MSPB appeal should more properly be raised with the MSPB AJ with
jurisdiction over that appeal.

Accordingly, after reviewing the previous decision and the entire record, the Commission finds
that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the
Commission to deny the request. The decision in EEOC Appeal No. 0120171936 remains the
Commission’s decision. There is no further right of administrative appeal on the decision of the
Commission on this request.

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)

This decision of the Commission is final, and there is no further right of administrative appeal
from the Commission’s decision. 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
0520180022

3
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.

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

April 4, 2018
Date