[Redacted], Darius R, 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense, Agency.

Equal Employment Opportunity Commission

Nov 22, 2021

Appeal No. 2021003990 (E.E.O.C. Nov. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Darius R,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense, Agency. Appeal No. 2021003990 Agency No. 2021-WHSPFPA-040 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated June 4, 2021, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant was a Police Officer, Grade AD-07, for the Pentagon Police Department of the Pentagon Force Protection Agency in Arlington, Virginia. In August 2019, Complainant was issued a notice of removal for being absent without leave and for failure to follow instructions. On May 18, 2021, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination based on race (African American), disability (chronic sinusitis, venous insufficiency), and in reprisal for prior protected activity. Complainant framed his claims as follows: 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 2021003990 1. On September 27, 2018, Pentagon Police Department (PPD), Pentagon Force Protection Agency (PFPA) forced Complainant to take a psychological exam, while not requiring the same for an individual outside Complainant’s protected class in or around May 2020; and 2. From 2017-2019, PFPA denied Complainant’s request for sick and Family and Medical Leave (FMLA) leave. On May June 4, 2021, the Agency issued a final decision. The Agency dismissed this present formal complaint, pursuant to 29 C.F.R. § 1614.107(a)(1) for Complainant having stated claims that the Agency was investigating or still pending before Agency. According to the Agency, Complainant has already stated both claims in Agency No. 2019-WHSPFPA-051,which is currently pending on appeal before the Commission. Additionally, the Agency stated Claim 2 had been fully adjudicated in Agency No. 2018-WHSPFPA-074. The instant appeal followed. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides for the dismissal of a complaint that states the same claims that is pending before or has been decided by the Commission or the Agency. To be dismissed as the “same claim,” the present formal complaint and prior complaints must have involved identical matters. This Commission has long held that in order from a formal complaint to be dismissed as identical, the elements of the complaint must be identical to the elements of the prior complaint in time, place, incident, and parties. Jackson v. U.S. Postal Serv., EEOC Appeal No. 01955890 (Apr. 5, 1996). Claim 1 concerns the Agency’s medical fitness director compelling Complainant to take a psychological examination in September 2018. In support of its response opposing the present appeal, the Agency attached a separate formal complaint about the September 2018 psychological examination that Complainant dated May 18, 2021. We also concur with the Agency that Complainant has raised this same claim in an amendment to Agency No. 2019- WHSPFPA-051 which remains pending before this Commission. We find that the Agency properly dismissed Claim 1. Claim 2 concerns Complainant’s multiple requests for excused absences under FMLA that were denied and for which the Agency charged him as AWOL from the end of 2017 until his employment terminated in 2019. Based on a careful reading of all relevant records, we find that Claim 2 is identical to Complainant prior claims regarding the Agency charging him for being AWOL between May 2018 and August 2018. We affirmed the Agency’s final order that adopted the AJ’s finding that Complainant failed to prove discrimination as alleged. See Complainant v. Department of Defense, EEOC Appeal No. 2020003461 (Mar. 23, 2021) request to reconsider denied EEOC Request No. 2021002573 (June 6, 2021). 3 2021003990 To the extent that Claim 2, has not already been decided, we find that the remainder of those AWOL claims are identical to pending matter, Agency No. 2019-WHSPFPA-051, which alleges discrimination in hundreds of hours of AWOL charged against Complainant beginning in December 2018 and April 2019.2 We find that the Agency properly dismissed Claim 2. CONCLUSION The Agency's final decision dismissing the formal complaint for the reasons discussed above is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. 29 C.F.R. § 1614.405; EEO Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9 § VII.B (Aug. 5, 2015). Complainant should submit his request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his request and arguments to the Director, OFO, EEOC, via regular mail addressed to P.O. Box 77960, Washington DC 20013, or by certified mail addressed to 131 M St. NE, Washington DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). 29 C.F.R. § 1614.403(g). 2 This matter is currently pending on appeal before the Commission in EEOC Appeal No. 2021005185. 4 2021003990 Either party’s request or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. 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 November 22, 2021 Date