[Redacted], Kerry B.,1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Apr 7, 2021

Appeal No. 2021001617 (E.E.O.C. Apr. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kerry B.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021001617 Agency No. 2003-741C-2020104867 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated November 19, 2020, 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. BACKGROUND During the period at issue, Complainant worked as a Program Support Clerk, GS-5, at the Agency’s Office of Community Care in Denver, Colorado. On September 28, 2020, Complainant filed a formal EEO complaint claiming that the Agency discriminated against him based on national origin (Hispanic) when, on February 26, 2019 and August 2, 2019, management moved Complainant to another cubicle. In its November 19, 2020 final decision, the Agency determined that the instant formal complaint was a resubmission of Complainant’s prior complaint, Agency No. 2003-741C- 219103014, which was pending adjudication before an EEOC Administrative Judge (AJ). 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. 2021001617 2 Consequently, the Agency dismissed claims raised in the instant complaint, pursuant to 29 C.F.R. §§ 1614.103, 1614.106. and 1614.107(a), finding that these claims were previously raised and currently pending before the AJ. The Agency also noted that while not included in the instant complaint, Complainant alleged, during the pre-complaint process, two additional claims that he was subjected to a hostile work environment based on national origin and in reprisal or prior protected EEO activity when he had a confrontation with a co-worker on April 18, 2020, and received a written counseling on June 6, 2020. Because Complainant did not include these claims in the instant formal complaint, the Agency determined that Complainant had abandoned these claims and dismissed them, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The instant appeal followed. ANALYSIS AND FINDINGS Previously Raised Claims EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides that the Agency shall dismiss an entire complaint that states the same claim that is pending before or has been decided by the agency or the Commission. The Agency properly dismissed the formal complaint for raising the same matter which was raised in a prior complaint (Agency No. 2003-741C-219103014) filed on July 23, 2019. The record reflects that the claims raised are pending adjudication before an EEOC AJ. The record includes a July 10, 2019 letter from the EEO Counselor indicating that informal counseling had concluded in Agency No. 2003-741C-219103014 where Complainant alleged, among other claims, that he was subjected to a hostile work environment based on national origin and in reprisal for prior protected EEO activity when on February 26, 2019, March 14, 2019, and April 15, 2019, management threatened to move him from his cubicle. The record also includes a June 6, 2020 letter from the Agency indicating that the specified claim in the prior complaint was fully investigated by the Agency and Complainant requested an administrative hearing before an AJ to adjudicate the matter. Therefore, we note that the claim raised in the instant complaint is identical to matter previously raised by Complainant. Abandoned Claims The record reflects that Complainant raised additional claims during the pre-complaint process but did not raise these claims in his formal complaint. The record further indicates that the Agency notified Complainant on October 13, 2020 that he had resubmitted claims in a prior complaint in the instant complaint and provided Complainant the opportunity to resubmit his formal complaint to include claims raised during the pre-complaint process. However, Complainant did not respond. 2021001617 3 The Commission has long held that where a complainant raises a matter at counseling but does not include that issue in the formal complaint, he/she cannot resurrect it later during the processing of the complaint. See Small v. U.S. Postal Serv., EEOC Request No. 05980289 (July 16, 1999). Thus, we find that the additional claims were abandoned by Complainant when he failed include it in his formal complaint. 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. 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. 2021001617 4 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. 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 April 7, 2021 Date