Reggie D.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Army & Air Force Exchange Service), Agency.

Equal Employment Opportunity Commission

Oct 23, 2018

0120182381 (E.E.O.C. Oct. 23, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Reggie D.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Army & Air Force Exchange Service),
Agency.

Appeal No. 0120182381

Agency No. 18.016

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated May 23, 2018, 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Assistant Store
Manager at the Agency’s Base Exchange in Los Angeles, California. On October 13, 2017,
Complainant filed a mixed case appeal with the Merit Systems Protection Board (MSPB)
alleging improper removal and 30-day suspension by the Agency. 2

On December 20, 2017, Complainant initiated EEO contact alleging that the Agency
discriminated against him on the bases of race (African-American), sex (male), and color (Black)
when it issued Complainant a 30-day, unpaid suspension that was reduced from a Final Notice of

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.
2 The record contains an Initial Decision, dated December 6, 2017, from MSPB regarding
Complainant’s suspension in lieu of removal. MSPB dismissed the matter without a hearing for
lack of jurisdiction. MSPB informed Complainant of the right to request EEOC review of
related claims of discrimination within 30 calendar days after its decision became final.
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Separation for Cause. Complainant served the suspension between September 23, 2017 and
October 22, 2017. On February 8, 2018, Complainant filed a formal complaint reiterating the
above claim of discrimination.

In a decision dated May 23, 2018, the Agency dismissed Complainant’s claim pursuant to 29
C.F.R. §§ 1614.107(a)(1) and (a)(2), for failure to state a claim and untimely EEO contact,
respectively. The Agency stated that Complainant and the Agency entered into a settlement
agreement on September 13, 2017 in which the Agency agreed to reduce the Notice of
Separation to a suspension and Complainant agreed not to grieve any related matters.3 The
Agency stated that Complainant’s EEO complaint of the matter is a collateral attack on the
settlement process. Further, the Agency stated that it provided Complainant EEO-related
training and that EEO posters were present in the food court area and back office hall area of the
facility so he should have been aware of statutory timeframes. The instant appeal from
Complainant followed.

ANALYSIS AND FINDINGS

The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency
shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any
aggrieved employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion, sex, national origin, age,

3The record contains a settlement agreement, dated September 13, 2017, between Complainant
and the Agency stating, in pertinent part, the provision that follows.

3. Waiver and Release

By executing this document, [Complainant] agrees that the [Agency’s]
performance of the specific provisions set forth below shall be in full settlement
and satisfaction of any and all claims; and in consideration therefore does hereby
waive and release any and all demands, rights, complaints, appeals, future
complaints, grievances, cause of action of whatsoever kind and nature arising
from [Complainant’s] employment with the [Agency] and including complaints
arising out of the same subject matter that gave rise to the above captioned
complaint, including but not limited to any adverse action appeal, alleged
mistreatment, harassment, constructive discharge or discrimination, including
discrimination under Title VII . . .

This means that this is the end of this [matter] and any and all claims that exist
today are settled, waived and closed, except only for enforcement of this
agreement and except to the extent that any such claims may not be waived by
virtue of specific law, rule or regulation.

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disabling condition, genetic information, or reprisal. 29 C.F.R. §§ 1614.103, .106(a). The
Commission's federal sector case precedent has long defined an “aggrieved employee” as one
who suffers a present harm or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April
21, 1994).

Following a review of the record, the Commission finds that the Agency properly dismissed
Complainant's complaint for failure to state a claim because it is a collateral attack on the
settlement process. On September 13, 2017, the two parties entered into a settlement agreement
regarding the separation reduced to a suspension at-issue herein, and Complainant agreed not to
pursue the matter further. However, subsequently, Complainant filed an MSPB appeal and then
an EEO complaint on the matter. As the claim is a collateral attack on the outcome of another
administrative dispute resolution process, it fails to state a claim. See 29 C.F.R. §
1614.107(a)(1). Accordingly, we AFFIRM the agency's decision dismissing complainant's
complaint.

Notwithstanding, for future reference, we remind the Agency that pursuant to 29 C.F.R. §
1614.302(b), if a person files a mixed case appeal with the MSPB appeal, rather than a mixed
case complaint, and the MSPB dismisses the appeal for lack of jurisdiction, then the agency shall
notify the individual of the right to contact an EEO Counselor within 45 days of receipt of that
notice from the agency. The date on which a person files his or her appeal with the MSPB shall
be deemed the date of the initial EEO Counselor contact. 29 C.F.R. § 1614.302(b).

CONCLUSION

We AFFIRM the Agency's final decision dismissing Complainant's complaint for failure to state
a claim.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition.
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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). All requests and arguments must
be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In
the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is
received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R.
§ 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal
Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also
include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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.
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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
October 23, 2018
Date