0120151483
07-23-2015
Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Defense Logistics Agency), Agency.
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.
Appeal No. 0120151483
Agency No. DLAN-15-0071
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 4, 2015, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Police Officer, GS-0083-06, at the Agency's Installation Support facility in Stockton, California.
On February 18, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), sex (male), color (Black), and age (57) when, from January 2012- January 2015, Complainant was denied promotions. Specifically, Complainant indicated that he was not selected for the following positions:
1. In January 2012, GS-0083-07, Police officer Instructor recruited under JOA Number DLADSS-12-594347-MP;
2. In July 2012, GS-0083-07, Lead Police Officer recruited under JOA Number
DLADSS-12-696834-MP;
3. In December 2013, GS-0083-07 Police Officer (Instructor) recruited under
DLADSS-14-1012596-MP;
4. In March 2014, GS-0083-07, Lead Police Office, recruited under DLADSS-14-
981149-MP;
5. In January 2015, GS-0083-07 Police Officer (Instructor) recruited under JOA Number DLADSS-15-1293379-DE.
6. In December 2012, GS-0083-09, Supervisory Police Officer, recruited under
DLADSS-13-798394-MP; and
7. In October 2013, GS-0083-09, Supervisory Police Officer, recruited under DLADSS-14-980775-MP.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(4). The Agency noted that Complainant had a matter before the Merit Systems Protection Board (MSPB or Board) and had raised his claim regarding the denial of promotion in his Petition for Enforcement which was pending before the MSPB pursuant to MSPB Docket Number SF-0752-13-0336-C-1. As such, the Agency dismissed the claim as being raised within the appeal to the MSPB. Further, the Agency dismissed the matter pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim arguing that the complaint constituted a collateral attack on the MSPB process. This appeal followed.
ANALYSIS AND FINDINGS
The Agency dismissed the matter pursuant to 29 C.F.R. � 1614.107(a)(4). A mixed case complaint is a complaint of employment discrimination filed with a federal agency, related to or stemming from an action that can be appealed to the MSPB. 29 C.F.R. � 1614.302(a)(1). An aggrieved person may initially file a mixed case complaint with an agency or may file a mixed case appeal directly with the MSPB, pursuant to 5 C.F.R. � 1201.151, but not both. 29 C.F.R. � 1614.302(b). 29 C.F.R. � 1614.107(a)(4) provides that an agency shall dismiss a complaint where the complainant has raised the matter in an appeal to the MSPB and 29 C.F.R. � 1614.302 indicates that a complainant has elected to pursue the non - EEO process.
Upon review of the record, we find that the instant complaint is not the same matter decided on appeal with the MSPB. A review of the record indicated that Complainant had been suspended from April 1, 2013, to June 26, 2013. The MSPB Administrative Judge (MSPB AJ) reversed the Agency's action and the full Board affirmed the MSPB AJ's decision on December 16, 2014. On January 13, 2015, Complainant filed a petition for enforcement which was denied by the MSPB AJ on February 19, 2015. Although Complainant may have raised the promotion actions, the crux of the MSPB AJ's decision involved whether the Agency had complied with his decision to reinstate Complainant. It did not address whether the promotion decisions constituted discrimination or not. Therefore, we cannot find that the MSPB has reviewed Complainant's claim of discrimination.
In addition, the Agency argued that the complaint should be dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim as the matter constituted a collateral attack on the MSBP process. The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). Again, we find that Complainant has not challenged the MSPB's decisions when he alleged that he was discriminated against regarding the promotion decisions. Complainant raised several issues within his Petition for Enforcement before the MSPB including some of the promotions raised in the instant complaint. However, the MSPB AJ did not address these issues and focused his decision on the issue of whether the Agency had implemented the relief ordered in the MSPB AJ's decision reversing the suspension. As such, we cannot find that the instant matter constitutes a collateral attack.
However, on appeal, Complainant submitted a copy of the civil action he filed in the Eastern District of California, Civil Action No. 2:15-CV-26. The copy of the complaint indicates that he clearly asserted that, during the suspension, he was denied promotion opportunities from the time of his suspension to February 4, 2014. This time frame encompasses all the promotions listed but for: events (4) In March 2014, GS-0083-07, Lead Police Office, recruited under DLADSS-14-981149-MP and (5) In January 2015, GS-0083-07 Police Officer (Instructor) recruited under JOA Number DLADSS-15-1293379-DE.
The regulation set forth at 29 C.F.R. � 1614.107(a)(3) allows for the dismissal of a complaint that is the basis of a civil action pending in a United States District Court in which the complainant is a party. Commission regulations mandate dismissal of the EEO complaint under these circumstances so as to prevent a complainant from simultaneously pursuing both administrative and judicial remedies on the same matters, wasting resources, and creating the potential for inconsistent or conflicting decisions, and in order to grant due deference to the authority of the federal district court. See Shapiro v. Dep't of the Army, EEOC Request No. 05950740 (Oct. 10, 1996); Stromgren v. Dep't of Veterans Affairs, EEOC Request No. 05891079 (May 7, 1990); Kotwitz v. U.S. Postal Serv., EEOC Request No. 05880114 (Oct. 25, 1988). As such, we find that the promotion claims listed as (1) - (3) and (6) - (7) should be dismissed pursuant to 29 C.F.R. � 1614.107(a)(3).
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 claims (1) - (3) and (6) - (7) albeit on other grounds. In addition, we REVERSE the dismissal of claims (4) and (5) and REMAND these claims for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims, namely claims (4) and (5) in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 23, 2015
__________________
Date
2
0120151483
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120151483