Rashad W,1 Complainant,v.Wilbur L. Ross, Jr., Secretary, Department of Commerce (Patent and Trademark Office), Agency.

Equal Employment Opportunity Commission

Nov 7, 2018

0120182190 (E.E.O.C. Nov. 7, 2018)

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

Rashad W,1
Complainant,

v.

Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce
(Patent and Trademark Office),
Agency.

Appeal No. 0120182190

Agency No. 185619

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision (FAD) dated May 18, 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 worked as a Legal Instrument
Examiner, GS-7, at the Agency’s Technology Center facility in Alexandria, Virginia.

On March 29, 2018, Complainant filed a formal complaint alleging that the Agency subjected
him to discrimination on the basis of race (African-American) when:

1. Since on or around 2000 and continuing, the Agency has violated 5 C.F.R. §
511.612 by not classifying Complainant properly on the general schedule (GS)
scale for the work he performs, resulting in under compensation, when compared
to similarly situated employees who are not Legal Instrument Examiners (LIEs) in
the Agency's Office of Patent Examination Support Services (OPESS).

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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2. The Agency has improperly fragmented Complainant's claims in the Notice of
Right to File a Formal Complaint and in the Counselor's Report and has also
denied Complainants request for a "third party" to investigate the claims.

The Agency dismissed claim 1 for stating the same claim as a previously-filed claim, and claim 2
for alleging dissatisfaction with the processing of a previously-filed complaint.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.107(a)(1), the Agency shall dismiss a claim that states that same
claim that is pending before or has been decided by the agency or Commission. The Agency has
shown that Complainant filed a Formal Complaint in 2016 under Agency No. 165633. In that
complaint, one of the allegations was “Since on or about 1996 and on-going, the Agency has
wrongly classified Complainant as a GS-0963-07, rather than as a GS-09.” In that case,
Complainant requested a hearing before an EEOC Administrative Judge and the Agency
transmitted the file to the AJ on November 28, 2016 and the case was assigned EEOC Case No.
570-2017-00239X. We find that claim 1 in the instant complaint is identical to the claim
currently pending before the AJ under EEOC Case No. 570-2017-00239X.

With regard to claim 2, 29 C.F.R. § 1614.107(a)(8) states that the Agency shall dismiss a
complaint that alleges dissatisfaction with the processing of a previously-filed complaint.
Chapter Five of the EEOC Management Directive 110 (MD-110) (Aug. 5, 2015) defines such a
complaint as a “spin off” complaint. MD-110 indicates further that “spin-off” complaints should
be referred to the agency official responsible for complaint processing and/or processed as part
of the original complaint. See id.; see also Complainant v. Department of Health and Human
Services, EEOC Appeal No. 05910159 (February 11, 1991). In the instant case, the record shows
that the matter was addressed by the EEO Director (EEOD), who is the agency official
responsible for complaint processing. EEOD found that, with regards to Complainant’s
allegation that the Counselor’s report and the Notice of Right to File improperly fragmented his
claims, such documents did not constitute Complainant’s complaint. EEOD noted that “when
making the accept/dismiss determination under 29 C.F.R. § 1614.107(a), the Agency considers
only Complainant's complaint, not the EEO Counselor's construction of the claims. Thus, it was
impossible for the EEO Counselor to fragment Complainant's claims.”

EEOD further found that, with regard to Complainant’s request for a third party to investigate his
claims, Complainant provided no evidence that the Agency’s Office of Equal Employment
Opportunity and Diversity (OEEOD), which was supposed to investigate, was not neutral, or that
a conflict of interest existed. EEOD further noted that “However, . . . , out of an abundance of
caution, I referred Complainant for EEO counseling to OEEOD's counterpart at the Department
of Commerce: its Office of Civil Rights (DOC-OCR). . . .. Thus, OEEOD already took action,
above and beyond any legal requirement, to address Complainant's concerns, as noted in the
record.” Following a review of the record we find that the Agency’s action sufficient to meet the
requirements of §1614.107(a)(8).

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CONCLUSION

The FAD 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. 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.
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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

November 7, 2018
Date