0120160766
03-01-2016
Cruz M.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Department of Defense Education Activity (DoDEA)), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Cruz M.,1
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Department of Defense Education Activity (DoDEA)),
Agency.
Appeal No. 0120160766
Agency No. EU-FY15-084
DECISION
On November 25, 2015, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated November 2, 2015, dismissing his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a former Teacher (Second Grade) at the Agency's Lakenheath Elementary School in the United Kingdom. He was removed for unacceptable performance effective September 16, 2011. The equal employment opportunity (EEO) counselor on the case before us wrote in her report that Complainant claimed he is 100% disabled and is on full disability. We take administrative notice that on January 12, 2016, the Merit Systems Protection Board (MSPB) dismissed Complainant's appeal regarding his removal with prejudice.
On July 15, 2015, Complainant filed a formal complaint alleging that the Agency discriminated against him based on disability and reprisal for prior EEO activity when the DoDEA's General Counsel:
1. On or about May 10, 2015, notified him that as of that date DoDEA would only recognize his requests when they are submitted to the Agency in writing by mail/parcel post; and
2. On June 16, 2015, he refused to reasonably accommodate his request for electronic readable text.
The record reflects that on April 22, 2015, the DoDEA General Counsel emailed Complainant that effective immediately, DoDEA would only recognized his requests when they are submitted in writing by mail/parcel post as follows: Freedom of Information Act (FOIA) requests to its FOIA Officer, EEO matters to its Diversity Management & Equal Opportunity DoD Education Activity, and other complaints to the Office of Investigation and Internal Review DoD Education Activity. All are located in Alexandria, Virginia. The DoDEA General Counsel explained to Complainant that since his termination, he has deluged DoDEA with thousands of email messages, many of which concern his termination, that they have been rude in tone, and some embedded with tracking software. He further explained that there have been numerous complaints that Complainant has been rude and hostile in his phone conversations with DoDEA employees, and he recently secretly taped his phone conversation with the DoDEA Chief of Staff where Complainant insulted him by calling him a coward.
The Agency dismissed the complaint for failure to state a claim. It reasoned that Complainant is not aggrieved.
ANALYSIS AND FINDINGS
On appeal, Complainant generally references his termination, his complaints with the Office of Special Counsel (OSC), EEO complaints, and a whistleblowing claim which led to an Inspector General investigation.
To the extent Complainant is complaining about the restriction on his form of communication with the Diversity Management & Equal Opportunity DoD Education Activity, this matter is dismissed for alleging dissatisfaction with the processing of a previously filed complaint. 29 C.F.R. � 1614.107(a)(8). To the extent he is complaining about the restriction on his form of communication with the Agency's FOIA office and Office of Investigation and Internal Review, this is an impermissible collateral attack on those processes. The place to raise this matter is with those offices, not the EEO process. Hartley v. Department of Transportation (Federal Aviation Administration), EEOC Appeal No. 0120120014 (Aug. 1, 2013)(FOIA); Starr R. v. United States Postal Service, EEOC Appeal No. 0120152543 (Nov. 18, 2015)(Office of Inspector General), 29 C.F.R. � 1614.107(a)(1).
The FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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, 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 (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
March 1, 2016
__________________
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
0120160766
2
0120160766