0120181533
09-11-2018
Roscoe P,1 Complainant, v. Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Roscoe P,1
Complainant,
v.
Dr. Heather A. Wilson,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120181533
Agency No. 4W1L1800211L18
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated March 7, 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 a Golf Professional at the Agency's Dover Air Force Base facility in Dover, Delaware.
On January 31, 2018, Complainant filed a formal complaint alleging that he was subjected to unlawful retaliation in violation of Title VII, when, in June 2017, a named Lt. Colonel made defamatory remarks about Complainant during an investigation2 into a previously filed EEO complaint (Agency Complaint No. 4W1L16002, later changed to 4W1L1640860 when the Agency adopted a new IT system) concerning his separation from employment during his probationary period. The record contains a copy of the Lt. Colonel's affidavit, dated June 21, 2017, submitted during that investigation.
On March 7, 2018, the Agency issued a final decision dismissing the complaint, pursuant to 29 C.F.R. � 1614.107(a)(8), for alleging dissatisfaction with the processing of a previously filed complaint. The Agency also stated that Complainant's initial complaint concerning his termination is currently within the jurisdiction of an EEOC Administrative Judge.
ANALYSIS AND FINDINGS
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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, disability, genetic information, or retaliation. See 29 C.F.R. 1614.103(a) and 1614.106(a). However, 29 C.F.R. 1614.107(a)(8) provides that an agency shall dismiss a complaint that alleges dissatisfaction with a previously filed complaint.
In this case, a fair reading of the complaint in conjunction with the related EEO counseling report shows that Complainant was alleging that he had been subjected to false testimony during the investigation of his original complaint into his termination. Consequently, we find that the instant formal complaint clearly concerns Complainant's dissatisfaction with the processing of his original complaint and his claim does not give rise to a new complaint. Complainant must challenge alleged false testimony within the processing of the complaint in which it was given. Therefore, Complainant may raise his allegations concerning the credibility of the Lt. Colonel, and his asserted motivations for his testimony during the investigation, before an EEOC Administrative Judge if he has, in fact, requested a hearing, or on appeal, if he so requests, in the original case where the testimony was given.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint for the reasons stated herein.
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 tends 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. 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. 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 11, 2018
__________________
Date
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 In his complaint, the investigation was called an "Investigations and Resolutions Directorate (IRD) investigation."
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