Byron P,1 Complainant,v.Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency.

Equal Employment Opportunity Commission

Nov 4, 2020

2020004457 (E.E.O.C. Nov. 4, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Derrick P.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2022001082 Agency No. VA-200C-XX08-2021105623 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated November 1, 2021, dismissing a formal 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., 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 Program Manager, Grade GS-13, for the Agency’s Office of Resolution Management (ORM), in Southeastern Operations. Complainant worked full-time, remotely, from his home near Marietta, Georgia. On September 10, 2021, Complainant initiated contact with an EEO counselor, but the matter was not resolved though EEO counseling. On November 2, 2021, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination based on race (African American), sex, disability, and in reprisal for prior protected EEO activity when: 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 2022001082 1. On February 16, 2021 and March 23, 2021, ORM failed to take action when Complainant requested to remove senior Agency officials from his prior EEO complaint; 2. On April 16, 2021, ORM’s Deputy Assistant Secretary failed to respond to Complainant’s Freedom of Information Act (FOIA) request for documents relating to Complainant’s prior cases; 3. On May 25, 2021 and other dates unspecified, a responsible management official for the Agency refused to use Complainant’s personal email address and sent harassing emails to Complainant’s work email address regarding a previous EEO complaint; and 4. On August 11, 2021, a responsible management official sent unencrypted emails pertaining to his previous EEO complaint to his work email address. Citing 29 C.F.R. § 1614.107(a)(8), the Agency dismissed all of the subject because they referred to processing of his prior EEO claims. The Agency stated that issues concerning EEO complaint processing of current complaints had to be raised during the EEO processing of the underlying complaint. The instant appeal followed. On appeal Complainant contended that the Agency had concluded its investigation without fully investigating his claims. Complainant claims that a manager, as opposed to the Agency’s EEO specialists, drafted the final agency decision. Complainant names other Agency officials that he alleged committed misconduct related to his EEO claims. Finally, Complainant maintains that the Agency’s dismissal should be reversed because Complainant’s present claims, now on appeal, had raised new and different matters that were different from his prior EEO complaint. ANALYSIS AND FINDINGS Under the Commission’s regulations set forth at 29 C.F.R. §§ 1614.103, 1614.106(a) the Agency must accept a complaint from an aggrieved employee states a justiciable claim that he has been subjected to employment discrimination because of EEO-protected characteristics or because of EEO-protected activities. Nevertheless, here we agree with the Agency. Instead of stating justiciable employment discrimination claims, Complainant made accusations that merely voice his dissatisfaction with processing of his prior EEO complaint. A fair reading of Complainant’s accepted allegations reveals that each one criticizes the Agency’s handling of Complainant’s prior EEO complaints. Therefore, in accordance with 29 C.F.R. § 1614.107(a)(8), this Commission finds that Agency appropriately dismissed the present claims for alleging dissatisfaction with processing of a previously filed complaint. 3 2022001082 CONCLUSION We AFFIRM the Agency's final decision dismissing the formal complaint for the reason discussed above. 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). 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. 4 2022001082 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. 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 March 14, 2022 Date