0120141109
11-17-2016
Charlie K., 1 Complainant, v. Jenny R. Yang, Chair, Equal Employment Opportunity Commission,2 Agency.
Charlie K., 1
Complainant,
v.
Jenny R. Yang,
Chair,
Equal Employment Opportunity Commission,2
Agency.
Appeal No. 0120141109
Agency No. 2013-0020
DECISION
On December 22, 2013, Complainant filed an appeal from the Agency's October 22, 2013, final decision, which Complainant received on November 22, 2013, concerning his equal employment opportunity (EEO) complaint alleging 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the Agency properly dismissed Complainant's complaint on the grounds that it stated the same claim as a previously filed complaint and alleged dissatisfaction with the processing of the previously filed complaint.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Investigator at the Agency's Denver Field Office in Denver, Colorado. On April 9, 2013, Complainant filed an EEO complaint (complaint number 2013-0020) alleging that the Agency discriminated against him on the bases of race (Latino), national origin (Mexican), sex (male), color (brown), disability (physical), sexual orientation ("traditional non-LGBT"),3 and reprisal for prior protected EEO activity.
Prior Complaints
Complainant filed two previous complaints. In complaint number 2010-00003, Complainant alleged that the Agency discriminated against him on the bases of national origin, color, and reprisal when it did not select him for "DNA of Leadership" training and when it subjected him to a hostile work environment. In complaint number 2011-33815, Complainant alleged that the Agency discriminated against him on the bases of national origin, color, race, disability, and reprisal and subjected him to a hostile work environment when a supervisor searched his laptop, he was reprimanded for sending e-mails about an intake matter, he was disciplined for putting an accent mark on his name plate, the Agency refused to provide him with a copy of the investigative report regarding a "bump-shove" incident, a supervisor made comments about him during the performance evaluations of two co-workers, a manager denied his request to reconsider and change his performance rating, his personal property was stolen, and a manager told him that he could not interview a charging party in his office on February 4, 2011. In addition, Complainant alleged that the Agency's Office of Equal Opportunity (OEO) delayed the processing of his complaint.
The Agency issued a final decision on complaints 2010-00003 and 2011-33815 on April 17, 2014. Consistent with the directives of Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chapter 5, � IV.D. (August 5, 2015), the final decision addressed Complainant's dissatisfaction with the processing of his complaints.4
Current Complaint
According to the EEO Counselor's Report for the instant complaint, Complainant initially sought counseling on January 27, 2013. In his April 9, 2013, formal complaint, Complainant alleged that the Agency subjected him to additional discrimination and retaliation after he filed complaint number 2010-00003. He alleged that he "was subjected to a physical manifestation of anger from" a co-worker on January 12, 2010, that management waited 45 days before appointing someone to conduct an internal investigation of the matter, and that managers asked the internal investigator to change his findings. With respect to complaint number 2011-33815, Complainant stated that the OEO Director declined to investigate Complainant's claim that the Agency delayed the processing of his complaint. He objected to the manner in which the Agency processed the complaint and asserted that the OEO Director did not inform him that the individual originally assigned to investigate his complaint was no longer on the case. He also asserted that the OEO Director interviewed him "in a confrontational, brow-beating, intimidating, and mean-mugging fashion," called him a "pot-stirrer," omitted relevant facts from the ROI, and "displayed preferential treatment to a member(s) of the LGBT community resulting in negative bias against [Complainant] because [he is] not a member of the LGBT community." Complainant alleged that the OEO Director's behavior was retaliatory and that the Director had a conflict of interest because Complainant named the Director in his claim regarding the processing of complaint number 2011-33815.
The Agency issued a Notice of Dismissal, signed by the Deputy Director of OEO, dismissing the instant complaint on October 22, 2013. The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1), on the ground that it raised the same claims as those in complaints 2010-00003 and 2011-33815, and pursuant to 29 C.F.R. � 1614.107(a)(8), on the ground that it alleged dissatisfaction with the processing of a previously filed complaint. The Agency stated that it was incorporating the complaint file for the instant complaint into the file for complaints 2010-00003 and 2011-33815.
CONTENTIONS ON APPEAL
On appeal, Complainant reiterates the assertions of his formal complaint. He argues that the instant complaint "shows a pattern and practice of discrimination and retaliation against Complainant." In addition, noting his allegation that the Agency discriminated against him because he is not a member of the LGBT community, Complainant states that the instant complaint raises a basis not cited in complaint number 2011-33815.
In response, the Agency argues that it properly dismissed the instant complaint. The Agency asserts that the instant complaint raises the same facts as the previous complaints. It argues that a complaint that states the same facts as those stated in a previous complaint will be deemed identical to the previous complaint even if it raises an additional basis. The Agency also argues that the instant complaint "contains nothing more than claims of [Complainant's] dissatisfaction with the way OEO in general (and [the OEO Director] in particular) processed Complaint No. 2011-33815."
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that an agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission. A complaint that states the same facts as a previous complaint, but alleges discrimination on additional bases, will be deemed identical to the earlier complaint and dismissed. Sweeney v. U.S. Postal Serv., EEOC Appeal No. 0120080557 (Jan. 27, 2011) ("It is well settled that a complaint which states the same facts as a previous complaint, but alleges discrimination on additional bases, will be deemed identical to the earlier complaint and dismissed."); Robbins v. U.S. Postal Serv., EEOC Request No. 01830664 (Nov. 9, 1983).
In addition, pursuant to 29 C.F.R. � 1614.107(a)(8), an agency shall dismiss a complaint that "alleges dissatisfaction with the processing of a previously filed complaint." Complaints about the processing of a previously filed complaint "should be referred to the agency official responsible for complaint processing, and/or processed as part of the original complaint." EEO MD-110 at Chap. 5, � III.F. Where a complainant's concerns have not been resolved informally with the agency, the complainant may raise the concerns with an EEOC Administrative Judge if the complainant has requested a hearing or with the EEOC's Office of Federal Operations on appeal. Id. � IV.D.
Complainant's dissatisfaction with the processing of his complaint is not actionable as a separate claim. Instead, pursuant to EEO MD-110, Complainant's claims should be processed as part of the original complaint. The Agency, therefore, properly dismissed the instant complaint on the ground that it alleged dissatisfaction with the processing of a previously filed complaint. Similarly, the Agency properly noted that it was incorporating the complaint file for this case into the file for complaints 2010-00003 and 2011-33815.
Although the instant complaint raised a new basis, it stated the same facts as set forth in the previous complaints. Accordingly, it states the same claim as the previous complaints. See Sweeney v. U.S. Postal Serv., EEOC Appeal No. 0120080557 (Jan. 27, 2011); Robbins v. U.S. Postal Serv., EEOC Request No. 01830664 (Nov. 9, 1983).
Moreover, as noted above, our independent review of the record leads us to conclude that the Agency properly dismissed the complaint on the grounds that it stated the same claim as a previously filed complaint and alleged dissatisfaction with the processing of a previously filed complaint.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Agency's final decision dismissing the formal complaint for the reasons stated herein is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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. The requests 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 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:
______________________________ Bernadette B. Wilson's signature
Bernadette B. Wilson
Acting Executive Officer
Executive Secretariat
__11/17/16________________
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 In the present matter, the Equal Employment Opportunity Commission (EEOC) is both the respondent Agency and the adjudicatory authority. The Commission's adjudicatory function is separate and independent from those offices charged with in-house processing and resolution of discrimination complaints. For the purposes of this decision, the term "Commission" or "EEOC" is used when referring to the adjudicatory authority and the term "Agency" is used when referring to the respondent party in this action. The Chair has recused herself from participating in the appellate processing of this case.
3 The Commission has held that a claim of discrimination based on sexual orientation states a claim of sex discrimination under Title VII. Baldwin v. Dep't of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015).
4 Complainant's appeal of the final agency decision is currently pending before this Commission in Chavez v. Equal Employment Opportunity Commission, EEOC Appeal No. 0120142315. Complainant's concerns about the processing of his complaints will be addressed in that appeal.
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0120141109
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, DC 20507
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0120141109