0120152957
01-12-2016
Zachary K.,1 Complainant, v. Martin J. Gruenberg, Chairman, Federal Deposit Insurance Corporation, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Zachary K.,1
Complainant,
v.
Martin J. Gruenberg,
Chairman,
Federal Deposit Insurance Corporation,
Agency.
Appeal No. 0120152957
Agency No. FDICEO-15-017
DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated July 31, 2015, dismissing his complaint of unlawful employment discrimination alleging violations 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 Compliance Examiner at the Agency's Division of Depositor and Consumer Protection, Dallas Region, Baton Rouge Field Office in Baton Rouge, Louisiana.
The record indicated that on December 24, 2014, Complainant emailed an Agency EEO counselor regarding his claim of denial of promotion when, on November 17 and 19, 2014, he was notified via USAJOBS that he was not selected for a Resource Management Assistant position and a Financial Institution Specialist position. Based on the email, the EEO Counselor was assigned the matter and it was docketed as FDICEO-15-017.
On January 20, 2015, as part of EEO counseling, Complainant signed an agreement to mediate the issue. The record contains a series of emails which indicate that mediation was scheduled to take place. However, although Complainant maintained his desire to engage in mediation, he had a conflict with the schedule, as well as concerns regarding the mediation being held via teleconference and the Agency's chosen representative. It appears that no further attempts at mediation occurred.
On March 15, 2015, Complainant was issued a Notice of Right to File a Formal Complaint ("Notice") via email by the EEO Counselor. A copy of the Notice was also mailed to Complainant's address of record.
On March 16, 2015, Complainant responded to the Notice in a letter sent to the Chief of the Agency's Complaint Processing Branch ("Chief"), stating that he never received a final counseling interview. He also asserted that the Agency refused to participate in mediation and complained that the Agency had not acted in good faith to resolve the informal matter.
On June 11, 2015, Complainant inquired as to the status of his complaint (FDICEO-15-017). An EEO Specialist responded that the EEO Office had no record of receiving a formal EEO complaint from him and considered the matter closed.
On June 17, 2015, Complainant sent an email to an EEO Specialist and the Chief stating that he was filing a complaint for the "denial of due process of EEOC complaint FDICEO-15017 based on race, gender and age." On June 23, 2015, Complainant submitted an amendment to the complaint to add individuals against whom he was filing the complaint.
On July 30, 2015, the Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(8), on the grounds that it was alleging dissatisfaction with complaint processing. The Agency determined that Complainant alleged discrimination on the part of the EEO office regarding his dissatisfaction with the EEO personnel's processing of his claims in FDICEO-15-017. As such, the Agency concluded that the matter should be dismissed.
Complainant appealed stating that the Agency's final decision was incorrect and misleading. He asserted that the complaint was due to the incomplete action on the part of the Agency's EEO Office's personnel. He asserted that the Agency's EEO personnel failed to complete the counseling process and did not adhere to EEOC guidelines. As such, Complainant claimed that his due process rights had been violated. Complainant indicated that the Agency did not engage in mediation and that all mediation activity was cancelled when he objected to the date of mediation and raised other issues. Complainant stated that the Agency's EEO office lacked professionalism and that he has been a victim of unlawful discrimination on the part of the Agency. He contended that the Agency's final decision is another act of unlawful retaliation for the three EEO complaints he has before the Agency. As such, Complainant requested that be granted "rights of Due Process and that the EEOC complaint proceed within the established protocols and guidelines."
The Agency responded to the appeal asking that the Commission affirm its dismissal.
ANALYSIS AND FINDINGS
As an initial matter, we note that Complainant does not deny the Agency's assertion that he did not file a formal complaint on his claim of discriminatory non-selections following his receipt of the March 15, 2015 notice of right to file.
Rather, three months later, Complainant filed a June 17, 2015 complaint alleging race, sex and age discrimination regarding a "denial of due process" concerning the EEO counseling he was provided and the failure to provide him with mediation for the informal complaint (FDICEO-15-017) concerning the non-selections. It is only this complaint, concerning complainant
Upon review of the record, we find that Complainant only filed a formal complaint alleging that the Agency's EEO Office did not properly process his informal complaint regarding the two non-selections. Furthermore, even on appeal, Complainant argued that he was subjected to discrimination and retaliation by the Agency's EEO Office based on the processing of his complaint. Complainant's concern was the EEO personnel and his claim that they infringed upon his "due process rights." As such, based on a fair reading of the record including Complainant's statement on appeal, we determine that Complainant abandoned his claim regarding the non-selections by not filing a formal complaint in response to the Notice, and in the instant complaint has only alleged discrimination on the basis of race, gender, age, and reprisal when the EEO office did not properly process his informal complaint.
The regulation set forth at 29 C.F.R. � 1614.107(a)(8) provides, in relevant part, that an Agency shall dismiss claims alleging dissatisfaction with the processing of a prior complaint. Dissatisfaction with the EEO process must be raised within the underlying complaint, not a new complaint. See EEOC - Management Directive 110 (MD-110) Ch. 5 � IV.D (as revised Aug. 5, 2015). Based on our finding that Complainant only alleged a claim of dissatisfaction with the processing of his informal matter, we find that the Agency's dismissal of the complaint is appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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, P.O. Box 77960, Washington, DC 20013. 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 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
January 12, 2016
__________________
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.
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