[Redacted], Patrick S., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Intelligence Agency), Agency.

Equal Employment Opportunity Commission

Oct 13, 2021

Appeal No. 2021004034 (E.E.O.C. Oct. 13, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Patrick S.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Intelligence Agency), Agency. Appeal No. 2021004034 Agency No. DIA-2021-00029 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated June 25, 2021, dismissing a formal 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. BACKGROUND During the relevant time, Complainant worked for the Agency as an Intelligence Planner at MacDill Air Force Base, Florida. On May 25, 2021, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination in reprisal for prior EEO activity (for filing prior EEO complaint, DIA-2021- 00013) when: 1. From March 25 to April 8, 2021, the EEO Counselor assigned to Complainant’s informal EEO complaint, Agency Number: DIA-2021-00013, refused to acknowledge his request to review her Counselor’s report; 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. 2021004034 2 2. On April 8, 2021, the EEO Counselor failed to include timely-submitted exhibits related to his complaint in her Counselor’s Report; 3. On April 8, 2021, the EEO Counselor falsely stated he was non-cooperative in the EEO complaint process in an attempt to have his complaint officially dismissed; 4. On April 8, 2021, the EEO Counselor colluded with the Associate General Counsel, in having his complaint dismissed by adding documents to his file; 5. On April 8, 2021, the EEO Counselor stopped corresponding with him and failed to complete her Counselor’s Report on time; and 6. On June 11, 2021, after reviewing the EEO Counselor’s Report, he discovered the EEO Counselor and Assistant General Counsel lied during their counseling interview and colluded against him by claiming they discussed Alternative Dispute Resolution (ADR) as a means to resolve his complaint.2 In its June 25, 2021 final decision, the Agency dismissed the formal complaint, pursuant to 29 C.F.R. § 1614.107(a)(8), on the grounds that it alleged dissatisfaction with the processing of a previously filed complaint. The instant appeal followed. In response to Complainant’s brief, the Agency argued that Complainant never fully addressed the Agency’s final decision, or the underlying allegations contained in the complaint. The Agency noted that the purpose of the instant appeal was to raise the matters related to Complainant’s six prior complaints. The Agency asserted that all but one of these prior cases have been fully adjudicated in favor of the Agency.3 Moreover, the Agency stated that the fact that Complainant is trying to use the processing of the instant complaint to try and resurrect past resolved complaints which is an improper basis for appeal and an abuse of the EEO process. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(8) provides that the Agency shall dismiss a formal complaint that alleges dissatisfaction with the processing of previously filed complaint. 2 The record reflects that claim 6 was later amended to the instant complaint. 3 The record reflects that DIA-2019-00028 (EEOC No. 510-2020-00047X) is still pending with the assigned Administrative Judge. In addition, DIA-2021-00013 was dismissed by the Agency on May 4, 2021, and there is no indication Complainant filed an appeal of that matter with the Commission. 2021004034 3 Here, we find that the Agency properly dismissed the instant complaint, in accordance with 29 C.F.R. § 1614.107(a)(8), for alleging dissatisfaction with the processing of a previously filed complaint. Complainant claimed that from March 25, 2021 to April 8, 2021, the EEO Counselor assigned to his prior informal complaint (DIA-2021-00013) retaliated against him by improperly processing his complaint. He further claimed that the EEO Counselor assigned to his prior complaint omitted documents, manipulated his case file, mishandled documents, made false statements, colluded with Agency management, and attempted to have his complaint officially dismissed. A fair reading of the complaint makes it clear that the instant complaint consists solely of allegations concerning dissatisfaction with complaint processing. As such, Complainant is attempting to raise an improper “spin off” complaint. According to EEOC's Management Directive (MD-110) at Ch. 5, IV, D, claims of improper handling should be processed as part of the underlying complaint, and not as an independent claim. As a result, Complainant’s dissatisfaction with the EEO Counselor’s case processing is properly dismissed as an independent complaint. Furthermore, Complainant amended his complaint by including the allegations that the EEO Counselor assigned to his prior complaint and the Agency representative lied during their counseling and colluded against him. Complainant’s amendment was also dismissed. The Agency’s final decision to dismiss the formal complaint is AFFIRMED for the reasons set forth herein. 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). 2021004034 4 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. 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. 2021004034 5 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 October 13, 2021 Date