0120160271
02-12-2016
Irvin C.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Irvin C.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120160271
Agency No. 200I-0516-2015105278
DECISION
On October 29, 2015, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated October 28, 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. and Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a former Police Officer at the Agency's Bay Pines VA Healthcare System in Bay Pines, Florida who was terminated in 2010, and was also an applicant for the same position there.
On September 11, 2015, Complainant filed a formal complaint alleging that the Agency discriminated against him based on his disability and reprisal for prior protected activity under Title VII and the Rehabilitation Act when on September 8, 2015, he learned that he was ineligible to apply for the position of Police Officer, vacancy announcement NY-15-AMA-1500871R1 BU, because the announcement was only open to current Bay Pines employees.
The Agency dismissed the complainant pursuant to an April 1, 2015, order by the United States District Court, Middle District of Florida, Case No. 8:15-cv-750 that read:
Plaintiff [Complainant] is Enjoined from filing any new action, complaint, or claim for relief against... the Department of Veteran's Affairs... related to his employment at Bay Pines VA Hospital, in federal court, state court, or any other forum unless he first obtains leave to file from this court. Leave will be freely given if the new action does not involve Plaintiff's former employment with the Department of Veteran's Affairs.
This was based on a finding of the court that Complainant's claims were frivolous, barred by res judicata, and time barred, and that the Defendants would suffer irreparable harm by having to defend themselves against a vexatious litigant who repeatedly asserts allegations against them.
Prior to dismissing the administrative complaint, the Agency contacted Complainant and asked him if he received leave from the court to file a new claim. He responded that the Court order pertained to his prior employment, not an application for new employment.
In dismissing the complaint, the Agency found that administrative complaint referred to and involved matters in his prior employment, and accordingly, should be dismissed pursuant to the Court order.
ANALYSIS AND FINDINGS
In opposition to the appeal, the Agency argues that a fair reading of Complainant's complaint is that he is attempting to re-litigate his prior complaints against the Chief of Police regarding his employment and termination.
While the issue in Complainant's complaint regards a restrictive Agency vacancy announcement, Complainant wrote therein that he was wrongfully terminated, that the Agency Police Chief refuses to give him his job back, and that he should be reinstated with back pay retroactive to 2010. The Agency argues that Complainant is attempting to circumvent the Court order by filing the instant complaint.
The record contains a second Court order issued by the above Court on June 19, 2015 - Case No. 8:15-cv-1062. Therein, applying the above order, the Court enjoined Complainant's civil action complaint which it characterized as alleging that an Agency attorney was preventing him from returning as a VA Police Office, and dismissed the case. A review of the civil action complaint reveals that Complainant also alleged therein that on August 29, 2014, the Agency attorney filed a report with the VA Police fraudulently accusing him of leaving her a harassing voicemail on August 27, 2014 - playing a portion of a song "You Can't Win." The Court applied its enjoinment order to actions arising long after Complainant's 2010 termination.
The Agency's argument that Complainant is trying to circumvent the Court's order, as evidenced by his asking to be reinstated with back pay retroactive to 2010, has enough merit that the Agency fairly required him to ask leave from the Court before proceeding with his EEO administrative complaint.
Accordingly, we affirm the FAD. But if Complainant asks for leave from the Court within 30 calendar days after he receives this decision, and the Court grants leave, the Agency shall resume processing Case Agency No. 200I-0516-2015105278.
In opposition to the appeal, the Agency also argues that the complaint should be dismissed for misuse of the EEO process under 29 C.F.R. � 1614.107(a)(9). The Agency is raising this for the first time on appeal. There is insufficient documentation in the record, at this point, to make a finding regarding this.
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
February 12, 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.
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