Agency.

Equal Employment Opportunity Commission

Apr 11, 2019

0120182368 (E.E.O.C. Apr. 11, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Ted L.,1
Class Agent,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120182368

Hearing Nos. 520-2015-00521X, 520-2016-00444X, and 520-2016-00445X

Agency Nos. 200H-0632-2014101342, 200H-0632-2015103328, and 200H-0632-2015105355

DISMISSAL OF APPEAL

On June 13, 2018, Class Agent filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
June 5, 2018 final order concerning his equal employment opportunity (EEO) class complaints
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.

BACKGROUND

At the time of events giving rise to this complaint, the Class Agent worked as a Nurse Assistant
at the Agency’s Medical Center in Northport, New York.

On February 20, 2014, the Class Agent filed an EEO complaint, identified as Agency No. 200H-
0632-2014101342, alleging he had been subjected to harassment based on his race (White)
and/or retaliatory animus when:

1. on November 18, 2013, he received a written counseling for sick leave usage;
2. on or about January 16, 2014, an inappropriate email was circulated about him from
the Nurse Manage; and

1 This case has been randomly assigned a pseudonym which will replace the Class Agent’s name
when the decision is published to non-parties and the Commission’s website.
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3. there existed a “conspiracy against white employees” caused by the Nurse Manager.

The Agency dismissed the matter. However, in Appeal No. 0120141596 (November 25, 2015),
EEOC remanded the matter to the Agency finding that the complaint contained a class claim that
“white employees…are not promoted, are given more difficult assignments, and are subjected to
a hostile work environment.” As such, the matter was remanded to the Agency for processing as
a class complaint.

Subsequently, on June 18, 2015, the Class Agent filed another formal complaint, identified as
Agency No. 200H-0632-2015103328, alleging that he was subjected to harassment based on race
and/or in retaliation for his prior EEO activity when:

4. Black employees were treated more favorably regarding days off and received easier
work assignments;
5. Black employees with no seniority and skills were recommended for promotions; and
6. on March 27, 2015, he was charged with four hours of leave without pay.

The Agency processed this matter as a class complaint.

On October 16, 2015, the Class Agent filed a third EEO complaint, identified as Agency No.
200H-0632-2015105355, alleging discrimination based on race and/or reprisal when:

7. every Sunday, a nurse refused to let the patients go to church services;
8. from January to September 2015, work assignments were made in an unfair manner
and he was given difficult assignments;
9. from January to September 2015, he was screamed at;
10. from January to September 2015, he was stalked on the ward;
11. Black nurses and nursing assistants are routinely allowed to come in late and he had
to cover for them; and
12. he was issued a proposed 14-day suspension.

In response to the Agency’s request for additional information, the Class Agent included the
following additional allegations:

13. on November 16, 2015, he was issued a written verbal counseling for sick leave;
14. on December 5, 2015, his request for annual leave was denied; and
15. on or about December 5, 2015, he was assigned to work the Christmas holiday.

The Class Agent later clarified that he wished Agency No. 200H-0632-2015105355 to be treated
as a class complaint. He indicated that he was basically claiming that the Agency discriminates
against White employees by giving Black employees preferential treatment regarding time and
attendance, work assignments and promotions.

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The Agency referred the three class complaints, as later expanded on by Complainant,2 to an
EEOC Administrative Judge (AJ) for class certification. On May 4, 2018, the AJ issued her
consolidated decision denying class certification. The AJ held that the Class Agent failed to
establish that the purported class met the four prerequisites of numerosity, commonality,
typicality, and adequacy of representation. In addition, the AJ dismissed the class complaints, as
well as the Class Agent’s underlying individual complaints subsumed into it, pursuant to 29
C.F.R. § 1614.107(a)(3). The AJ noted that the Class Agent had filed a civil action in the
Eastern District of New York which mirrored his administrative complaints at issue.

The Agency subsequently issued a final order fully implementing the AJ’s decision.

The Class Agent filed the instant appeal.

ANALYSIS AND FINDINGS

EEOC regulations at 29 C.F.R. §§ 1614.107(a)(3) and 1614.409 provide that the filing of a civil
action on the same matter terminates the processing of a complaint filed in the EEO
administrative process, including any pending appeal. Commission regulations mandate
dismissal of the EEO complaint under these circumstances to prevent a complainant from
simultaneously pursuing both administrative and judicial remedies on the same matters, wasting
resources, and creating the potential for inconsistent or conflicting decisions, and in order to
grant due deference to the authority of the federal district court. See Stromgren v. Dep’t of
Veterans Affairs, EEOC Request No. 05891079 (May 7, 1990); Sandy v. Dep’t of Justice, EEOC
Appeal No. 01893513 (Oct. 19, 1989); Kotwitz v. U.S. Postal Serv., EEOC Request No.
05880114 (Oct. 25, 1988).

Here, the record shows that on November 6, 2017, the Class Agent filed a civil action in the U.S.
District Court for the Eastern District of New York, identified as Case No 2:17-cv-06481. A
review of that complaint indicates that Complainant has essentially alleged the same factual
claims as those considered by the AJ regarding the Class Agent’s three administrative class
complaints. In addition, the Class Agent expressly indicated that he intends the Court to consider
his complaint as a “class action.” While somewhat unclear, it appears the Class Agent has
additionally asked the Court to review cases that have been considered by administrative judges
in EEOC’s New York District Office for the past seven years, including the three at issue in this
complaint. We note that this civil action is still pending.

In sum, we find that the Class Agent has filed a civil action in the Eastern District of New York,
alleging class-wide discrimination by the Agency on the bases of race and retaliation for events
from 2003 to at least 2017, involving the same allegations of disparate treatment and

2 Basically, Complainant provided additional allegations to support his overall claim that Black
employees are given preferential treatment while White employees are subjected to a hostile
work environment.
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discriminatory harassment of White employees as those raised in his administrative complaints at
issue here. As such, we find that the AJ properly dismissed the three administrative class
complaints pursuant to 29 C.F.R. § 1614.107(a)(3). Further, for the same reason, we must
dismiss the underlying individual complaints of the Class Agent that were subsumed into his
class complaints. See Gonzales and Owen v. Dep’t of Transp., EEOC Appeal No. 01980685
(July 6, 2000) (dismissing the individual complaint of a class agent who also filed a civil action).

As a final matter, we note that the EEOC AJ also included in her decision a sanction against the
Class Agent where she “permanently” enjoined him from filing an EEO complaint in the
administrative process in the future. However, the Class Agent filed his civil action in
November 2017, prior to the AJ’s decision issuing the sanction. With the filing of the civil
action, the administrative processing of the administrative class complaints was terminated. As
such, the civil action ended the AJ’s jurisdiction over the class complaints. Accordingly, the AJ
had no jurisdiction to issue the sanction enjoining the Class Agent from future EEO complaints
and/or hearings.3

CONCLUSION

Accordingly, the Class Agent’s appeal is hereby DISMISSED. See 29 C.F.R. § 1614.409.

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 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.

3 While we are not ruling on the propriety of the sanction imposed by the AJ, the Commission
has held that sanctions must not be overbroad and should be tailored to each situation, applying
the least severe sanction necessary to respond to the party's failure to show good cause for its
actions, as well as to equitably remedy the opposing party. See Gray v. Dep't of Defense, EEOC
Appeal No. 07A50030 (March 1, 2007); Hale v. Dep't of Justice, EEOC Appeal No. 01A03341
(December 8, 2000).

We also remind Complainant that EEOC regulations provide for the dismissal of complaints that
are part of a “clear pattern of misuse of the EEO process for a purpose other than the prevention
and elimination of employment discrimination.” 29 C.F.R. § 1614.107(a)(9).
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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.
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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 11, 2019
Date