[Redacted], Valentin P., 1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army (National Guard Bureau), Agency.

Equal Employment Opportunity Commission

Jan 14, 2021

Appeal No. 2021000456 (E.E.O.C. Jan. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Valentin P.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army (National Guard Bureau), Agency. Appeal No. 2021000456 Agency No. 2020-06 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated September 25, 2020, dismissing his 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 worked as a WG-10 Surface Maintenance Mechanic at the Agency’s North Carolina Army National Guard (NCNG) in Raleigh, North Carolina. On July 8, 2020, Complainant a formal EEO complaint identified as Agency No. 2020-06. Complainant claimed that the Agency subjected him to harassment based on his disability and retaliation for prior EEO activity. In its September 25, 2020 final decision, the Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(8), on the grounds that the claims raised solely addressed Complainant’s dissatisfaction with the processing of his prior EEO complaint, identified as Agency No. 2019-04. The instant appeal followed. 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. 2021000456 2 ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(8) provides that an Agency shall dismiss claims alleging dissatisfaction with the processing of a prior complaint. Dissatisfaction with the EEO process must be raised during the processing of the underlying complaint, and not as a new independent complaint. The record reflects that on June 16, 2019, Complainant had filed an earlier EEO complaint (Agency No. 2019-04) claiming he had been subjected to ongoing harassment by several management officials. The matter went before an EEOC Administrative Judge (AJ), who determined the Agency had discriminated against Complainant based on disability and retaliation when, during February - March 2019, a management official refused to sign a time-sensitive document required to process Complainant’s medical retirement. The Agency implemented the AJ’s decision, and the $7,500 damages award was paid to Complainant on August 26, 2020. On July 11, 2020, Complainant appealed the Agency’s final order in Agency Case No. 2019-04. This matter, docketed as EEOC Appeal No. 2020004151, is still pending before the Commission. Upon our review of the record, we determine that the matters raised in the EEO complaint currently before us is accurately characterized as reflecting dissatisfaction with events that occurred between Complainant and the Agency directly related to the processing of Agency Case No. 2019-04 before the EEOC AJ. As such, the Agency’s dismissal of the instant formal complaint is AFFIRMED pursuant to 29 C.F.R. § 1614.107(a)(8). 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). 2021000456 3 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. 2021000456 4 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 January 14, 2021 Date