[Redacted], Paul N., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Sep 21, 2021

Appeal No. 2021002711 (E.E.O.C. Sep. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Paul N.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency. Appeal No. 2021002711 Agency No. DLAR-21-0070 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated March 25, 2021, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Contract Specialist, GS-1102-12, at the Agency’s Aviation facility in Redstone Arsenal, Alabama. On March 16, 2021, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African American) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On October 9, 2020, Complainant received an email response from the Division Chief stating he was placing Complainant on indefinite suspension and pay effective October 13, 2020; and 2. On January 5, 2021, Complainant received another letter from the Division Chief 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. 2021002711 2 stating Complainant was being placed back on suspension without pay effective January 22, 2021. The Agency dismissed the claim on the grounds that Complainant had previously filed the same claim with the Merit Systems Protection Board (MSPB). The instant appeal followed. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.107(a)(4), an Agency shall dismiss a complaint where the matter was raised in an appeal to the MSPB and § 1614.302 indicates that the complainant has elected to pursue the non-EEO process. In accordance with 29 29 C.F.R. § 1614.302(b), if both an EEO complaint and a MSPB appeal are filed, then “whichever is filed first shall be considered an election to proceed in that forum.” The record shows that Complainant appealed the first suspension to the MSPB on November 5, 2020 and the second on January 19, 2021. Complainant did not file the instant EEO complaint until March 16, 2021. Consequently, we find that Complainant elected to file with the MSPB rather than this Commission. As a result of electing the MSPB, we cannot grant Complainant a second or separate adjudication. Khera v. Dep't of Def., EEOC Request No. 05920280 (Apr. 23, 1992). On appeal, Complainant argues that: Though the content of my appeal references the said behavior of reprisal, retaliation and discrimination by [Agency] parties, it is not by any means represent the contextual grounds and purpose of my appeal to MSPB. The grounds of my EEO complaint were filed on the basis of retaliation, reprisal as well as discrimination. Such context has been described clearly in context on both informal and formal EEO complaints. The MSPB is not able to review nor motion forward with any form allegations of reprisal, retaliation, or discrimination they are able review and motion forward with questioning DLA from a procedural execution standpoint/scope. As I iterated, my appeal to MSPB was based on procedural standpoint/scope that DLA and said parties executed against me. Complainant appears to be arguing that he did not include allegations of discrimination or reprisal in his MSPB claims and further, that the MSPB cannot address such matters. With regard to the first argument, we note that contrary to his claim, a copy of his more recent MSPB appeal shows that in box 5 of the MSPB Form 185-2 “Appeal of Agency Personnel Action or Decision (Non-retirement)” wherein Complainant was asked to “briefly explain why you think the agency was wrong in taking this action” Complainant wrote “It is believed that Appellant is working in a hostile environment and is being discriminated against because of his race (African- American) and gender (male). He has also filed a previous EEO Complaint (Reprisal).” 2021002711 3 With regard to Complainant’s contention that the MSPB “is not able to review nor motion forward with any form allegations of reprisal, retaliation, or discrimination” we note that box 5 of MSPB Form 185-2 states in pertinent part “In challenging such an action, you may choose to allege that the agency engaged in harmful procedural error, committed a prohibited personnel practice, or engaged in one of the other claims listed in Appendix A.” (Emphasis added) A review of Appendix A shows that it states: Prohibited Personnel Practices: A claim that the agency action or decision you are challenging was the result of one of the personnel practices prohibited by 5 U.S.C. § 2302(b). Among the prohibited personnel practices most likely to be relevant as an affirmative defense in an MSPB proceeding are: unlawful discrimination under subsection (b)(1); retaliation for protected whistleblowing under subsection (b)(8); and retaliation for other protected activity under subsection (b)(9). (Emphasis added). • Unlawful Discrimination: A claim that the agency action was the result of prohibited discrimination based on race, color, religion, sex, national origin, disability, age, marital status, political affiliation, genetic information, and retaliation for prior EEO activity. See U.S.C § 2302(b)(1) and 7702; 5 C.F.R. Part 1201, Subpart E;29 C.F.R. Part 1630 and Appendix to Part 1630; 42 U.S.C. § 2000ff et seq.; 29 C.F.R. § 1614.302-.308. Because the record shows that Complainant first chose to file with the MSPB, we find that the Agency correctly dismissed the instant complaint. CONCLUSION The Dismissal 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. 2021002711 4 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. 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. 2021002711 5 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 September 21, 2021 Date