0120181095
07-12-2018
Kory V.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (National Geospatial-Intelligence Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kory V.,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense
(National Geospatial-Intelligence Agency),
Agency.
Appeal No. 0120181095
Agency No. NGAE00322017
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated January 9, 2018, dismissing his 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a former employee, who had retired from the Agency's Office of Diversity, Management & EEO, NGA OCS facility in Springfield, Virginia.
On May 5, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of religion (Jewish), age (71), and reprisal for prior protected EEO activity under Title VII, when, he learned on March 28, 2017, that a former supervisor "at some time in 2016," replied to an inquiry from a prospective employer and provided a negative reference. He was seeking employment at another Federal agency. Complainant alleged that the supervisor's response was in retaliation for Complainant's EEO activity against the National Geospatial-Intelligence Agency three years earlier.
Agency Decision
The Agency dismissed the complaint on the grounds that Complainant's claims are substantially the same as those pending a hearing in Complainant v. Department of Defense, NGA, EEOC Hearing Number 570201700817X with regard to an earlier complaint NGAE00172016. The Agency noted that the same claims also had been raised in the other complaint, which also referenced the same supervisor. The Agency referenced Complainant's affidavit which he filed in the other appeal, which claimed that the former supervisor was one of the alleged supervisors who provided negative comments to prospective employers.
This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant alleges that the claims are not the same as they pertain to different employment actions (which he refused to identify) and different time periods. In his brief, Complainant acknowledged that he did not identify the different external agency selecting officials, nor the vacancy numbers, or the non-selection that he alleged occurred on March 28, 2017.
The Agency responds that Complainant failed to identify any actions that occurred, or positions lost, in 2017 and that Complainant acknowledged in both his complaint and affidavit that the alleged incident occurred "some time in 2016," which is the same claim that is already pending.
ANALYSIS AND FINDINGS
The regulation 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 Agency dismissed the complaint because it found that the matter was the same as another complaint which raised the same allegations against the same management official. Further, both Complainant and the official stated that the action occurred in 2016. That claim was presented in the previous complaint.
The record shows that, "some time in 2016," when the supervisor was asked whether the supervisor would rehire "this person again, the supervisor responded "no," because he retired from the Agency without sufficient lead time. Complainant conceded that the alleged incident occurred in 2016. The alleged supervisor confirmed that he responded to an inquiry in 2016. That claim is already pending in a prior complaint. Complainant failed to specify any new personnel action that occurred on March 28, 2017.
The Commission finds that because Complainant failed to show that his claims were actually different from the claims in which he named the same official as having provided a negative reference in 2016, the complaint must be dismissed. Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for stating the same claim as an earlier complaint.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
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 tends 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. 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
July 12, 2018
__________________
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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