Jarvis R,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.Download PDFEqual Employment Opportunity CommissionApr 26, 20192019002071 (E.E.O.C. Apr. 26, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jarvis R,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency. Appeal No. 2019002071 Agency No. ARHQOSA14DEC04787 Hearing No. 410-2016-00185X DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated August 14, 2018, dismissing a formal 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked for the Agency as a Supervisory Program Analyst at Fort Belvoir, Virginia. On February 19, 2015, Complainant filed a formal complaint.2 Complainant claimed that the Agency subjected him to discrimination based on race, national origin, sex, color, disability, age, and in reprisal for prior protected EEO activity when: 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 Complainant later clarified and amended the complaint on May 10, 2015, August 11, 17, and 25, 2015, which were accepted. 2019002071 2 1. on or about November 4, 2014, management officials of the Chief Information Office (“CIO”)/G-6, Headquarters, unlawfully reassigned and/or detailed Complainant to a nonsupervisory position in the Cyber Security Directorate (SAIS-CB), CIO/G-6, under the direct supervision of a subordinate employee, resulting in a significant change in duty, which in effect was a demotion; 2. in November 2014, CIO/G-6 management refused to consider Complainant's request to reclassify his Position Description from GS-0343-15 to a Senior Level system employee, while unlawfully detailing him to work for a subordinate employee; 3. from October 2012 to July 31, 2015, CIO/G-6 management failed to give Complainant credit and compensation for overtime worked as the Acting Director/Deputy Director, Chief Integration Office (CXO/SAIS-ZC), CIO/G-6; 4. in November 2014, CIO/G-6 management denied Complainant a reasonable accommodation for a health condition when management did not consider him for participation in the Voluntary Leave Transfer Program; 5. in November 2014, CIO/G-6 management failed to reasonably accommodate a health condition when management did not approve Complainant's request to work full time by telework from his residence in Alpharetta, Georgia; 6. in March 2015, CIO/G-6 management denied Complainant the opportunity to attend cyber security training that he requested in order to meet the qualifications for an "unlawful" detail assignment in SAIS-CB; 7. since November 2014, an Agency employee, acting on behalf of CIO/G-6 management, "unlawfully" recorded Complainant as Absent Without Leave and Leave Without Pay for his time and attendance when he was in a duty status while teleworking or while in approved leave status; 8. in January 2015, Complainant suffered "unlawful" discharge from the office as the Acting Director/Deputy Director, CXO/SAIS-ZC, stood up a new Human Resources/Management Support Directorate, with the remaining CXO/SAIS-ZC functions, and "arbitrarily" promoted a subordinate to displace Complainant; 9. in January 2015, the Acting Director/Deputy Director wrote to Complainant, telling him it was unacceptable for Complainant to tell other employees that he remained in the capacity of Deputy Director, CXO/SAIS-ZC; and, 2019002071 3 10. in January 2015, the Acting Director/Deputy Director "unlawfully" subjugated Complainant to an independent cubicle work space while kicking him out of an office space, and burdened Complainant with a significant commute from Fort Belvoir to the Pentagon. At the conclusion of the investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested for a hearing before an EEOC AJ. During this same period, on July 28, 2015, Complainant appealed the Agency’s decision to remove him from his detail in the CIO to the Merit Systems Protection Board (MSPB) (Docket number DC-0752-15-1030-I-1). In the MSPB appeal, Complainant raised discrimination and retaliation claims. On May 31, 2016, the MSPB AJ affirmed the Agency’s actions. The MSPB AJ addressed each of Complainant’s many arguments in detail and concluded that Complainant was not subjected to discrimination as alleged. The MSPB informed Complainant that he had the right to file a petition for review of its decision with the EEOC’s Office of Federal Operations, or to file a civil action in federal district court. The decision further informed Complainant that he was permitted to choose only one avenue of review, and that, once chosen, he would be precluded from pursuing any other. While the EEO complaint was still pending before the EEOC AJ, on or about August 1, 2016, Complainant filed suit in the U.S. District Court for the Northern District of Georgia, raising numerous claims, including claims of employment discrimination, as well as constitutional claims, criminal assault claims, Health Insurance Portability and Accountability Act of 1996 claims, Privacy Act claims, and tort claims, among others, all arising from his Agency employment during the time period at issue in this case. The case was subsequently transferred to the Eastern District of Virginia, Alexandria Division (Civil Action No. 1:16-cv-1454). Complainant subsequently filed an amended complaint in March 2017. By Memorandum Opinion dated July 11, 2017, U.S. District Judge dismissed the amended complaint on the grounds that Complainant’s claims were barred by the doctrine of res judicata. Complainant appealed the U.S. District Judge’s Order to the U.S. Court of Appeals for the Fourth Circuit. The Agency filed a motion with the EEOC AJ to dismiss the administrative EEO complaint based on Complainant’s filing of his civil suit concerning the same claims with the U.S. District Court, Eastern District of Virginia, Alexandria Division. On July 20, 2018, the EEOC AJ issued an Order Granting Agency’s motion for dismissal. The EEOC AJ stated careful consideration was exercised to compare the EEO complaint with all submissions: the May 2016 Decision of the MSPB AJ in Docket number DC-0752-15-1030-I-1, Complainant’s initial and amended complaints in Civil Action No. 1:16-cv-1454; the U.S. 2019002071 4 District Judge’s Memorandum Opinion dismissing Complainant’s amended complaint pursuant to the doctrine of res judicata; and the September 11, 2017 Informal Brief that Complainant filed in his Fourth Circuit appeal of U.S. District Judge’s dismissal. The EEOC AJ found that the claims raised in the instant case were either explicitly or implicitly raised before and rejected on the merits by the MSPB, and/or remain pending (at the time) in Complainant’s Fourth Circuit appeal. Accordingly, the EEOC AJ determined that the doctrine of res judicata and Commission regulations barred the Commission’s further consideration of Complainant’s case and dismissed the complaint pursuant to 29 C.F.R. §§ 1614.107(a)(3) and 1614.109(b). On August 14, 2018, the Agency issued its final decision adopting the EEOC AJ’s dismissal decision pursuant to 29 C.F.R. § 1614.107(a)(3) and 1614.109(b). The instant appeal followed. ANALYSIS AND FINDINGS Commission regulations provide for the dismissal of any complaint, “[t]hat is the basis of a pending civil action in a United States District Court in which the complainant is a party provided that at least 180 days have passed since the filing of the administrative complaint, or that was the basis of a civil action decided by a United States District Court in which the complainant was a party.” 29 C.F.R. § 1614.107(a)(3). Here, the record indicates that on or about August 1, 2016, Complainant filed a civil action at the U.S. District Court in the Eastern District of Virginia, Alexandria Division (Civil Action No. 1:16-cv-1454), concerning the same issues raised in the instant EEO complaint. Therefore, we find that the complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(3). Accordingly, the Agency's decision to adopt the EEOC AJ’s decision to dismiss pursuant to 29 C.F.R. §§ 1614.107(a)(3) and 1614.109(b) is AFFIRMED for the reasons discussed above. 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. 2019002071 5 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. 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. 2019002071 6 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, Director Office of Federal Operations April 26, 2019 Date Copy with citationCopy as parenthetical citation