Jules H.,1 Complainant,v.Ashton B. Carter, Secretary, Department of Defense (Defense Contract Management Agency), Agency.

Equal Employment Opportunity Commission

Mar 29, 2016

0120142100 (E.E.O.C. Mar. 29, 2016)

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

Jules H.,1
Complainant,

v.

Ashton B. Carter,
Secretary,
Department of Defense
(Defense Contract Management Agency),
Agency.

Appeal No. 0120142100

Agency No. P5-14-0052

DECISION

Upon review, we find that the Agency’s final decision dated April 7, 2014, dismissing
Complainant’s complaint for raising the same matter in an appeal to the Merit Systems
Protection Board (MSPB) pursuant to 29 C.F.R. § 1614.107(a)(4) is proper.

The record indicates that on September 10, 2013, Complainant, an applicant for employment at
the Agency, was notified that he was not selected for a Safety and Occupational Health
position, GS-0018-07, at the Agency. On November 20, 2013, Complainant filed an appeal to
the MSPB concerning the foregoing nonselection and alleged discrimination based on his 10-
point compensable disabled veteran status, age (over 40), religion, and in reprisal for filing a
grievance. The record also indicates that on April 6, 2014, Complainant filed the instant
complaint, dated April 4, 2014, alleging discrimination in reprisal for filing his grievance for
the same September 10, 2013 nonselection.

Based on the foregoing, we find that the Agency properly dismissed the instant complaint for
raising the same nonselection issue by filing an appeal to the MSPB. See 29 C.F.R.
§1614.107(a)(4). In addition, we note that there is no record of Complainant engaging in any
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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prior EEO activities as he alleged. See 29 C.F.R. § 1614.101. On appeal, Complainant
submits a copy of his grievance filed on May 23, 2011, concerning the Agency’s improper
denial of his promotion to GS-11 at that time wherein he indicated that the subject grievance
was not based on any discrimination. Therefore, the complaint was also properly dismissed for
failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1).

Accordingly, the Agency’s final decision dismissing the complaint 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.

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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 29, 2016
Date