0120180835
06-07-2018
Chadwick W.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Information Systems Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Chadwick W.,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense
(Defense Information Systems Agency),
Agency.
Appeal No. 0120180835
Hearing No. 570-2018-00290X
Agency No. DOD-DISA-15-009
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the decision by the Equal Employment Opportunity Commission Administrative Judge (AJ) dated January 5, 2018, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.2
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a civilian employee of the Army, deployed to Kabul, Afghanistan to work as a Senior ICT Advisor, GS-15, on DISA's Telecommunications Advisory Team (TAT).
On March 21, 1951, Complainant filed a formal complaint with the Agency alleging that a named Senior TAT Advisor in Afghanistan subjected him to discrimination on the bases of race (African-American), national origin (Jamaican of Chinese Heritage), sex (male), color (Black), age (52), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, starting in July 2014, she subjected him to a hostile work environment and then removed him from his assignment in Afghanistan, effective August 29, 2014, even though he claims she was not authorized to do so. Complainant asserts his deployment in Kabul had been scheduled to continue through June 2015. Complainant was returned to his prior position in the United States, and asserts he lost pay as a result of the premature termination of his overseas deployment.
The Agency had dismissed the complaint by final decision dated June 2, 2015. Complainant appealed the dismissal to the Commission. In Chadwick W. v. Dep't of Defense, EEOC Appeal No. 0120152007 (June 19, 2017), the Commission reversed the Agency's dismissal and remanded the matter for further processing in compliance with 29 C.F.R. � 1614.108 et seq.
The record indicated that the matter was remanded for investigation. While the Agency investigated the complaint, Complainant had another matter filed against the Department of the Air Force, namely EEOC Hearing No. 570-2016-00895X, pending before the AJ. The matter also included the Department of the Army and the Agency. On September 7, 2017, the Department of the Army filed a Motion to Consolidate the instant complaint, namely Agency No. DOD-DISA-15-009, with the pending hearing matter before the AJ. The Motion to Consolidated included the Department of the Army, the Department of the Air Force, and the Department of Defense as joint respondent agencies. The Department of the Army asserted that matter remanded by the EEOC had involved identical claims as those pending before the AJ and should be consolidated provided that the parties are given an additional four weeks of discovery for further development of the record.
On September 24, 2017, Complainant filed his response to the Motion to Consolidate asserting that it was premature as the Agency was still investigating Agency No. DOD-DISA-15-009. The AJ noted that Complainant's response was filed late and provided no explanation for his untimely filing. On September 25, 2017, the AJ issued her decision granting the joint respondent Motion for consolidation.
Following, the Agency's investigation of the matter at hand, Complainant requested a hearing which was docketed as EEOC Hearing No. 570-2018-00290X. We note that the same AJ was assigned both EEOC Hearing No. 570-2016-00895X and EEOC Hearing No. 570-2018-00290X. On December 15, 2017, the AJ issued her Notice of Intent to Dismiss this matter noting that the claim alleged in EEOC Hearing No. 570-2018-00290X was the subject of another hearing matter, specifically EEOC Hearing No. 570-2016-00895X. The parties were provided until January 3, 2018, to respond to the Notice. On December 29, 2017, Complainant responded to the Notice. He did not challenge the AJ's assertion that EEOC Hearing No. 570-2016-00895X included the claim alleged herein. He argued that the claim raised in Agency No. DOD-DISA-15-009 should be dismissed from EEOC Hearing No. 570-2016-00895X so that the matter could be addressed separately in EEOC Hearing No. 570-2018-00290X. The Agency did not provide a response to the Notice.
On January 5, 2018, the AJ dismissed EEOC Hearing No. 570-2018-00290X finding that the claim raised in Agency No. DOD-DISA-15-009 is the subject of EEOC Hearing No. 570-2016-00895X. As such, the AJ dismissed the matter pursuant to 29 C.F.R. � 1614.107(a)(1). Complainant appealed the AJ's dismissal asserting that the matter has been dismissed for a second time.
We note that the AJ issued her decision on EEOC Hearing No. 570-2016-00895X on April 6, 2018. In her decision, she specifically addressed Complainant's claim that he was subjected to a hostile work environment and disparate treatment on the bases of race (African-American), national origin (Jamaican of Chinese Heritage), sex (male), color (Black), age (52), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, starting shortly after Complainant's arrival in Afghanistan in July 2014 until August 2014, when members of his leadership attempted to unilaterally dissuade a subordinate teammate in the Ministry of Defense Afghanistan program from deploying to his team; verbally assaulted him with "colorful language;" made menacing actions toward him while wearing a pistol; berated him during a conference meeting and announced that he could redeploy immediately if he did not like proposed changes to the organization; and on August 29, 2014, he was administratively released from his assignment in Afghanistan. We find that this instant appeal only concerns the dismissal of EEOC Hearing No. 570-2018-00290X.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that the agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission. Upon review of the record, we find that the AJ properly dismissed the matter pursuant to 29 C.F.R. � 1614.107(a)(1). We note that Complainant's claim of discrimination alleged in Agency No. DOD-DISA-15-009 has been consolidated by the AJ into EEOC Hearing No. 570-2016-00895X. As such, the claims raised by Complainant in Agency No. DOD-DISA-15-009 have been addressed in EEOC Hearing No. 570-2016-00895X.3 Therefore, we find no reason to disturb the AJ's decision in EEOC Hearing No. 570-2018-00290X.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the dismissal of the complaint at hand.
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
June 7, 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 The record does not indicate that the Agency issued its final decision following the AJ's decision to dismiss the matter. We note that the AJ's decision became the Agency's final decision by operation of law pursuant to 29 C.F.R. � 1614.109(i).
3 As noted above, the AJ has issued a decision on EEOC Hearing No. 570-2016-00895X. If Complainant wishes to challenge the AJ's decision regarding the processing and disposition of EEOC Hearing No. 570-2016-00895X, he must do so in a separate appeal on that matter with the Office of Federal Operations.
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