0120142373
10-16-2014
Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, Agency.
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
Agency.
Appeal No. 0120142373
Hearing No. 570-2013-00578X
Agency No. EOI-2013-00079
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's May 30, 2014 final order concerning his equal employment opportunity (EEO) complaint alleging 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
On November 14, 2012, Complainant, a former Agency employee, filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected him to discrimination on the bases of race, national origin, sex, religion, disability, age, and in reprisal for prior EEO activity when:
the Agency's representative in a then-ongoing EEO complaint, [named Associate General Counsel], retaliated against him during the processing of said complaint by threatening him to withdraw his formal EEO complaint and arranging for the Federal Protective Service, local law enforcement and the Assistant County Attorney to intimidate him.
Following the investigation of the instant formal complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On April 15, 2014, the AJ issued a decision dismissing the instant formal complaint on the grounds that it alleged dissatisfaction with the processing of a prior complaint, pursuant to 29 C.F.R. � 1614.107(a)(8). Specifically, the AJ determined that in the instant case, Complainant alleges dissatisfaction with the actions of an Agency representative in a prior complaint, including referring Complainant's voice mails and conduct during the processing of his EEO complaint which constitutes a spin-off complaint. In the alternative, the AJ also dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
In its final order, the Agency adopted the AJ's decision. The instant appeal followed.
ANALYSIS AND FINDINGS
The record discloses that in May 2009, Complainant filed an earlier EEO complaint alleging discrimination when he was not hired for several Legal Assistant positions. The Agency investigated the complaint and Complainant requested a hearing. During the pre-hearing process, a discovery dispute occurred between the parties. In several dates in October 2012, both the Agency's Representative and the AJ asserted they received numerous voice mail messages from Complainant that were described as angry, harassing and vulgar. It is claimed that these messages were so numerous that it filled their voice mail boxes. As a result, the Agency's Representative contacted the Federal Protective Service, which in turn consulted with the local police and prosecutor to see if any local laws were being broken by the telephone calls.
Complainant notified the AJ about the Agency's referral to the Federal Protective Service, and moved for the AJ to impose sanctions on the Agency. The AJ declined this request. Instead the AJ issued an Order of Dismissal With Prejudice, concluding that Complainant had engaged in contumacious conduct and a "serious abuse of the process." The Agency adopted the AJ's dismissal. Complainant appealed. On May 20, 2013, the EEOC issued a decision affirming the AJ's dismissal decision. See, Schoenrogge v. Department of Justice, EEOC Appeal No. 0120130893.
In the current complaint, filed in November 2012, we find that Complainant is again seeking to raise this same issue that has already been adjudicated by both the Agency and the EEOC in his prior complaint. The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that the agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission. Accordingly, we find that the Agency correctly dismissed this new complaint.
Moreover, EEOC Regulation 29 C.F.R. � 1614.107(a)(8) provides that an Agency shall dismissal claims alleging dissatisfaction with the processing of a prior complaint. Dissatisfaction with the EEO process must be raised within the underlying complaint, not as a new complaint. See EEOC - Management Directive 110 (MP-110) 5-23, 5-25 to 5-26 (Nov. 9, 1999). As already noted, Complainant did raise his concerns about the actions of the Agency Representative in his prior complaint within the adjudication of that prior complaint. However, simply because he did not prevail in that prior adjudication, he is not entitled to resurrect his claim in a new complaint.
The Agency's final order implementing the AJ's dismissal of the instant formal complaint is AFFIRMED for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 9-18 (November 9, 1999). 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 16, 2014
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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