Harvey G.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Nov 19, 2018

0120182720 (E.E.O.C. Nov. 19, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Harvey G.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120182720

Agency No. ARMEADE17NOV04651

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision 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 worked as an Intelligence
Specialist, GS-13, at the Agency’s Army Intelligence and Security Command facility in Ft.
Meade, Maryland.

On March 27, 2018, Complainant filed a formal complaint alleging that the Agency subjected
him to discrimination on the basis of disability when: (1) on August 4, 2017, Complainant was
removed from his FLETC class; (2); on August 10, 2017, Complainant was removed from
training at the Federal Law Enforcement Training Center (FLETC) and returned to his duty
station in Miami, Florida; (3) in October 2017, Complainant was directed to use 160 hours of

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.

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accrued leave; and (4) on November 12, 2017, Complainant was directed to use administrative
leave. 2

The Agency dismissed claims 1 and 2 pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO
Counselor contact. Claims 3 and 4 were dismissed for failure to state a claim.

The instant appeal followed.

ANALYSIS AND FINDINGS

Claims 1 and 1: Untimely EEO Counseling

EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should
be brought to the attention of the Equal Employment Opportunity Counselor within forty-five
(45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.

The record discloses that the alleged discriminatory events in claims 1 and 2 occurred on August
4 and 10, 2017, but Complainant did not initiate contact with an EEO Counselor until November
10, 2017,3 which is beyond the forty-five (45) day limitation period. On appeal, Complainant has
presented no persuasive arguments or evidence warranting an extension of the time limit for
initiating EEO Counselor contact relating to these claims.

Claims 3 and 4: Failure to State a Claim

An agency shall accept a complaint from any aggrieved employee or applicant for employment
who believes that he or she has been discriminated against by that agency because of race, color,
religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The
Commission's federal sector case precedent has long defined an "aggrieved employee" as one
who suffers a present harm or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994). When the complainant does not allege he or she is aggrieved within the
meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim
pursuant to 29 C.F.R. § 1614.107(a)(1).

2 Complainant was removed from the training class and placed on administrative leave pending
an investigation into a charge that he engaged in conduct unbecoming a Federal employee. He
was later terminated from his position effective April 24, 2018. He has appealed his termination
to the Merit Systems Protection Board and it is not part of the instant complaint.

3 On November 10, 2017, Complainant’s attorney contacted a person who had not been an EEO
counselor for several years. That person suddenly passed away later that month, and the email
was eventually forwarded to an EEO counselor. We accept the November 10, 2017 date as
Complainant’s initial EEO counselor contact.
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Here, we disagree with the Agency’s decision to dismiss claims 3 and 4 on the basis that
Complainant is not aggrieved. However, we note that it is undisputed that Complainant was
placed on administrative leave during the investigation into a charge of misconduct (that resulted
in his removal from FLETC) which eventually led to his termination. Complainant has appealed
his removal to the Merit Systems Protection Board (MSPB), where he has also raised claims
regarding being placed on administrative leave. Therefore, we conclude that claims 3 and 4 are
inextricably intertwined with his MSPB appeal concerning his termination. 29 C.F.R. §
1614.107(a)(4) allows for the dismissal of an EEO complaint where the same matter has been
raised in an appeal to the MSPB. We determine that it is more appropriate to dismiss claims 3
and 4 on this basis.

Moreover, to the extent that Complainant is arguing on appeal that claims 1 and 2 should be
considered as part of a timely raised harassment claim with claims 3 and 4, we view the entire
complaint as more properly stating a claim of wrongful termination (rather than harassment) as
all four of Complainant’s “claims” are tied to his termination and appear to be preliminary steps
leading to that termination. Complainant’s disability discrimination claim concerning his
termination will be considered by the MSPB.

Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.

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.
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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

November 19, 2018
Date