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

Equal Employment Opportunity Commission

Jul 7, 2021

Appeal No. 2020004983 (E.E.O.C. Jul. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hayden R.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense, Agency. Appeal No. 2020004983 Agency No. 2020-WHSPFPA-080 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated September 3, 2020, dismissing his complaint alleging 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 At the time of events giving rise to this complaint, Complainant worked as a Police Officer, AD- 7, with the Agency’s Pentagon Force Protection Agency at the Pentagon facility in Washington, District of Columbia. On August 13, 2020, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African American), disability, and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and Section 501 of the Rehabilitation Act of 1973 when, on July 22, 2020, the Agency attempted to intimidate him as a witness by informing him, via USPS, that this proposed removal had been lost and recreated, giving him a new response time. 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. 2020004983 2 The Agency dismissed the claim in its entirety on that grounds that it was identical to another claim currently pending before an EEOC administrative judge and because it failed to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). On appeal, Complainant contends his “accusation of Racial Discrimination due to witness intimidation and improper record keeping is not related to [his] previous complaints. The accusation is part of an ongoing pattern Racial Abuse inflicted upon [him] by the defendant which derived from a complaint filed against [his] third line supervisor in 2014.” (Motion to Appeal, 1). He further contended in another Motion to Appeal that his records related to his removal were lost or inappropriately kept due to his race and because he agreed to be a witness in a case against the Agency. The Agency filed an appellate brief contending that the complaint was properly dismissed as duplicative, the complaint was properly dismissed for failure to state a claim, and Complainant’s allegation that the dismissal of his Complaint is itself an act of discrimination is an improper collateral attack on the Agency’s EEO process. 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 Commission has consistently held that in order for a 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. See Jackson v. Department of the Air Force, EEOC Appeal No 01955890 (April 5, 1996), rev'd on other grounds, EEOC Request No. 05960524 (April 24, 1997). Here, in a previously filed EEO complaint (Agency No. 2019-WHSPFPA-051) pending a hearing before an EEOC Administrative Judge (EEOC No. 570-2020-00506X), Complainant, among other things, alleged discrimination on the bases of disability (chronic sinusitis, venous insufficiency), as well as unlawful reprisal for prior EEO activity, when on August 26, 2019, he was issued Notice of Proposed Removal. In the instant case, Complainant alleged discrimination on the basis of race, disability, and reprisal when he was informed that the paperwork for this proposed removal had been lost and recreated, giving him a new opportunity to respond. We conclude that the instant complaint raises, in all essential elements, the same matter as the prior complaint (Agency No. 2019-WHSPFPA-051). We recognize that the date of the reissue of the proposed removal allowed Complainant more time to respond, but do not find that the date change altered the proposed removal in any way. The proposed removal was still issued by the same Agency official based on the same factual charges. While Complainant asserts this was to intimidate him in participating in the EEO process, we note that Complainant already raised unlawful reprisal as a basis in his earlier complaint on the same matter. Clearly, he could raise the alleged intimidation in the adjudication of that earlier complaint. Thus, the Agency properly dismissed Complainant’s complaint for stating the same claim as a previously filed complaint. 2020004983 3 CONCLUSION The Agency's final decision dismissing the formal complaint is AFFIRMED for the reasons discussed above. 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. 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). Complainant should submit his or her 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 or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, 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. See 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). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her 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. 2020004983 4 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. 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 7, 2021 Date