Lenny W.,1 Complainant,v.Robert M. Speer, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionApr 21, 2017

0520170100 (E.E.O.C. Apr. 21, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lenny W.,1 Complainant, v. Robert M. Speer, Acting Secretary, Department of the Army, Agency. Request No. 0520170100 Appeal No. 0120162691 Agency No. ARIMCOMHQ16APR01467 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120162691 (October 27, 2016). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). In his underlying complaint, Complainant claimed that he was discriminated against on the bases of his color (white), sex (male), disability (bi-polar depression), age (62) and in reprisal for his prior EEO activity when on March 8, 2016, an Agency official issued Complainant a modification of the September 8, 2015 letter, which had permanently barred him from entering Fort Leavenworth, in order for Complainant to gain access to the Agency installation to prepare for an EEO hearing. Complainant also claimed that he received insufficient access to Fort Leavenworth as there were only three preparation dates, three hours in length. In its final decision, the Agency dismissed the claim concerning the modification of the bar letter pursuant to 29 C.F.R. § 1614.107(a)(1) on the grounds of failure to state a claim and 29 C.F.R. § 1614.107(a)(5) on the grounds of mootness. The Agency determined that 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. 0520170100 2 Complainant retired on July 31, 2015, and therefore he was no longer an Agency employee when the March 8, 2016 modified letter was issued. The Agency dismissed the claim concerning insufficient preparation time at Fort Leavenworth on the grounds of mootness. The Agency stated that the prior EEO complaint for which Complainant was granted access to prepare for a hearing was resolved by a settlement agreement on April 26, 2016. The Agency determined that there was no reasonable expectation that the alleged violation would recur. On appeal, the Commission affirmed the Agency’s dismissal of the complaint. In our previous decision, in addition to the aforementioned two claims, we addressed Complainant’s claim that he was harassed by two Agency officials when they sought protective orders against him for stalking. With regard to the March 8, 2016 letter allowing Complainant limited access to the Fort Leavenworth installation, we found that Complainant failed to state a claim as he was no longer an Agency employee. We regarded Complainant’s claim of limited access to the facility and limited preparation time as a claim alleging dissatisfaction with the processing of a previously filed complaint. We stated that Complainant could raise this matter with an Agency official responsible for complaint processing rather than raise it as a separate complaint. As to the matter concerning Agency officials seeking protective orders against him, we dismissed this claim on the grounds of failure to state a claim. We found that the claim constituted a collateral attack on another forum, and that it was inappropriate for Complainant to use the EEO administrative process to challenge judicial proceedings. In his request for reconsideration, Complainant contends that he has been harmed with regard to a term, condition, or privilege of his employment as the original letter banning him from the installation was issued on March 11, 2015, prior to his retirement. Complainant maintains that he suffered discriminatory harassment beginning in September 2012 and that the harm done to him continues until the present. Complainant also contends that the instant complaint is not encompassed by the settlement agreement. In response, the Agency asserts that Complainant, by stating that the instant complaint is not part of the settlement agreement, admits that the instant complaint was filed after the settlement agreement was executed and when he was no longer an Agency employee. The Agency argues that Complainant has not suffered a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. With regard to Complainant’s contention concerning the original ban from the installation on March 11, 2015, and the alleged harassment beginning in September 2012, the Agency asserts that these claims were resolved by the settlement agreement. Upon review of the record, including the arguments set forth by Complainant and the Agency, we find that Complainant has failed to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law. Complainant was retired and no longer an Agency employee when the Agency issued the March 8, 2016 letter concerning his access to the Fort Leavenworth facility. We agree with our previous decision that Complainant’s claim concerning limited access and preparation time at the Fort Leavenworth installation are claims concerning dissatisfaction with the processing of the prior EEO complaint, which should 0520170100 3 instead be raised with an Agency official responsible for complaint processing rather than as a separate complaint. As for the matter regarding two Agency officials seeking protective orders against him, we agree with our prior finding that this claim failed to state a claim as it constituted an improper collateral attack on the judicial forum. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 0120162691 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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. 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 April 21, 2017 Date