0120102759
03-07-2012
Frederick S. Felt, Complainant, v. Charles F. Bolden, Jr., Administrator, National Aeronautics and Space Administration (Goddard Space Flight Center), Agency.
Frederick S. Felt,
Complainant,
v.
Charles F. Bolden, Jr.,
Administrator,
National Aeronautics and Space Administration
(Goddard Space Flight Center),
Agency.
Appeal No. 0120102759
Agency No. NCN09GSFC047
DECISION
Complainant filed a timely appeal with this Commission from the
Agency's decision dated January 29, 2010, dismissing his complaint of
unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964, 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
an Engineer for QSS/Perot Systems (QSS), a private government contractor.
QSS provides laboratory support for the Goddard Space Flight Center
(GSFC) Parts Packaging and Assembly Technologies Office, Parts Analysis
Laboratory, in Greenbelt, Maryland. On September 15, 2009, Complainant
filed a formal complaint alleging that the Agency subjected him to
discrimination on the bases of race (Caucasian), sex (male), religion
(unspecified), color (white), age (62), and in reprisal for prior
protected EEO activity when: (1) in 2001, GSFC management in Codes
560 and 562 released him as Manager of the Parts Analysis Laboratory
and replaced him with an Engineer whom he deems to be unqualified; and
(2) GSFC management led him to believe that his 2006 EEO claim would
be resolved.
The Agency dismissed the Federal sector complaint for failure to state
a claim pursuant to 29 C.F.R. § 1614.107(a)(1). It reasoned that
Complainant was an employee of a private contractor, not the Agency.
Accordingly, the Agency concluded that Complainant does not have standing
to bring a Title VII or ADEA claim against the Agency.
CONTENTIONS ON APPEAL
On appeal, Complainant claims that the Agency’s Branch Head instructed
QSS not to promote Complainant which indicates that the Agency maintained
controlled over his employment. In response, the Agency argues that
Claim 1 was previously litigated and that Claim 2 is untimely.
ANALYSIS AND FINDINGS
Claim 1 – Previously Litigated
The regulations 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.
The Commission has consistently held that in order for a complaint to be
dismissed as identical, the elements of the complaint must be identical to
the elements of the prior complaint in time, place, incident, and parties.
See Encinias v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120112897
(Oct. 28, 2011), citing Jackson v. Dep’t of the Air Force, EEOC Appeal
No. 01955890 (Apr. 5, 1996), rev’d on other grounds, EEOC Request
No. 05960524 (Apr. 24, 1997).
A review of the record shows that Claim 1 is identical to a claim
filed in a previous complaint. Specifically, the record shows that
on June 26, 2007, Complainant filed an EEO formal complaint (Agency
No. NCN07GSFCA042CW) (2007 Complaint) against the Agency alleging that
he was subjected to discrimination on the bases of race (Caucasian), sex
(male) and age (DOB: July 2, 1946) when, in 2001, he was demoted from
his contract position as manager of the Parts Analysis Laboratory and
replaced with a less qualified civil servant.1 On February 21, 2008,
the Commission upheld the Agency’s dismissal of the 2007 Complaint for
failure to state a claim due to the finding that he was not an employee
or an applicant for employment with the Agency. See Felt v. Nat’l
Aeronautics and Space Admin., EEOC Appeal No. 0120080723 (Feb. 21,
2008).2 The record shows that the elements of the 2007 Complaint
are identical with respect to the time, place, incident and parties.
Accordingly, we dismiss Claim 1 for stating the same claim that has
already been decided by the Commission.
Claim 2 – Spin-Off Claim
The Commission finds that it is appropriate to dismiss Claim 2 pursuant
to 29 C.F.R. § 1614.107(a)(8), which provides that an Agency shall
dismiss a complaint that alleges dissatisfaction with the processing
of a previously filed complaint. See Trujillo v. Dep’t of the Air
Force, EEOC Request No. 05950177 (June 13, 1996). Specifically, we
find that Claim 2 is a “spin-off” claim which simply expresses the
dissatisfaction with the processing of a previously filed complaint.
According to Complainant’s statements in the record, Claim 2 raises
the assertion that, in 2006, Agency officials misled him into believing
that he had followed the proper channels to file an EEO claim which caused
his 2006 EEO claim to be untimely. Accordingly, we AFFIRM the Agency’s
dismissal of Claim 2 on the basis that it constitutes a spin-off claim.3
CONCLUSION
Because we affirm the Agency’s dismissal of the instant complaint
for the reasons stated herein, we find it unnecessary to address the
dismissal ground raised in the Agency’s final decision (i.e., finding
that Complainant was not an employee or applicant for employment with
the Agency).
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 (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 (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
March 7, 2012
__________________
Date
1 The 2007 Complaint also included a claim of discrimination pertaining
to the issuance of Complainant’s performance appraisal in February 2007.
2 The Agency also concluded that Complainant failed to contact an EEO
counselor within the required 45-day time-frame.
3 If a Complainant is dissatisfied with the processing of his EEO
complaint, he must first bring his allegations regarding the processing
of the complaint to the appropriate Agency officials. See EEO Management
Directive 110, p. 5-25 (November 9, 1999).
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01-2010-2759
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013