Billie L.,1 Complainant,v.R. Alexander Acosta, Secretary, Department of Labor, Agency.Download PDFEqual Employment Opportunity CommissionOct 3, 20180120172165 (E.E.O.C. Oct. 3, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Billie L.,1 Complainant, v. R. Alexander Acosta, Secretary, Department of Labor, Agency. Appeal No. 0120172165 Hearing No. 430-2015-00298X Agency Nos. DOL-CRC-14-04-117; DOL-ARB-15-04-123 DECISION The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant’s appeal from the Agency’s final action dismissing her 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. For the following reasons, the Commission AFFIRMS the final action. BACKGROUND At the time of events giving rise to these complaints, Complainant worked as a Farm Labor Program Specialist at the Agency’s Wage Hour Division, Farm Labor Office in Atlanta, Georgia. On September 23, 2014, Complainant filed a formal complaint (Agency No. DOL-CRC-14-04- 117) alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African-American), national origin (African-American), sex (female), religion (Christianity), disability, and age (50) as evidenced by multiple incidents 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. 0120172165 2 including, inter alia, she was written up for a first-time offense for a file that she did not process; her acting supervisor sexually harassed her; her acting supervisor accused her of falsifying her sign-in time; her acting supervisor tried to put her on absent without leave (AWOL) when she had submitted a leave slip that he approved; her work was stolen from her desk; she received more assignments and work than a comparable co-worker; her acting supervisor gave false information about her work to a customer in order to “provoke [her] to act unprofessional [sic];” her acting supervisor directed other people to harass her; she was told that her acting supervisor instructed staff members and student employees to watch and follow her during work time; all her religious signs were removed from her cubicle; she was reprimanded for asking for a report of all her outgoing work; her acting supervisor called her a “nigger” and “stupid” multiple times; she was sent a letter informing her that the Agency could no longer grant her any more leave without pay, and that she would be put on AWOL; and her leave request was denied. Following an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On December 18, 2014, Complainant sought EEO counseling regarding an alleged denial of her reasonable accommodation request. On January 16, 2015, Complainant was issued a notice of right to file a formal complaint. On January 29, 2015, Complainant filed a second formal complaint (Agency No. DOL-ARB-15- 04-123) alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African-American), color, national origin (African-American), sex (female), religion (Christianity), disability, age (50), and in reprisal for prior protected EEO activity when her request for reasonable accommodation was denied by forcing her to accept reassignment to a full-time position that would have violated her medical restrictions. Complainant submitted her second complaint directly via email to the Agency’s EEO Director rather than the Agency’s Civil Rights Center as instructed in the notice of right to file a formal complaint. The email was overlooked and the Agency initially failed to investigate the complaint. On August 3, 2015, Complainant submitted a request for a hearing with the Commission’s Miami District Office. The Agency subsequently discovered that Complainant had filed her second complaint with the EEO Director and began processing the complaint. Complainant did not participate in the investigation. The Agency dismissed several additional allegations included in the complaint pursuant to 29 C.F.R. § 1614.107(a)(8) as spin-off complaints. On September 2, 2015, the Miami District Office transferred the complaint to the Atlanta District Office for processing. On February 2, 2016, Complainant filed a civil action in the U.S. District Court for the Northern District of Georgia Atlanta Division (identified as Civil Action No. 1:16-CV-0036-CC-JCF) raising claims under Title VII, the ADEA, and the Americans with Disabilities/Rehabilitation Act. In her filing, Complainant included the same allegations over the same period of time as she claimed in her EEO complaints. On March 27, 2017, the AJ assigned to the matters consolidated the two complaints and issued a decision dismissing the complaints pursuant to 29 C.F.R. § 1614.107(a)(3) for alleging the same 0120172165 3 claims as were pending in a complaint filed in federal court. When the Agency failed to issue a final order within 40 days of receipt of the AJ’s decision, the AJ’s dismissal decision became the final action of the Agency. See 29 C.F.R. § 1614.110(a). Complainant filed the instant appeal. CONTENTIONS ON APPEAL On appeal, Complainant again raises challenges to the processing of both complaints during the investigative and hearing stages. Complainant contends that the Agency never had authority to investigate her second complaint as she had already requested a hearing. Complainant claims that the AJ committed numerous flaws and attempted to cover up wrongdoing. Accordingly, Complainant requests that the Commission reverse the Agency’s final action upholding the AJ’s dismissal, find in her favor, and award damages. In response, the Agency notes that Complainant’s contentions on appeal do not address the procedural defect at issue. The Agency contends that the AJ properly dismissed Complainant’s complaints and hearing requests as she elected to pursue her claims in federal court. The Agency argues that Complainant has conceded previously that her complaint raised in federal court encompasses the same claims alleged in the first formal complaint and that a review of the second formal complaint demonstrates that she raised the same claim contained in her second formal complaint in her federal complaint as well. Thus, all claims raised in her two formal EEO complaints are compassed in her claim pending in federal court. Accordingly, the Agency requests that the Commission affirm its final action upholding the AJ’s dismissal. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(3) provides that an EEO complaint should be dismissed if it “is the basis of a pending civil action in a United States District Court in which the complainant is a party.” Additionally, the regulation found at 29 C.F.R. § 1614.409 provides that the filing of a civil action “shall terminate Commission processing of the appeal.” Commission regulations mandate dismissal of the EEO complaint under these circumstances so as 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). In the instant case, the AJ dismissed the complaints on the grounds that Complainant filed a civil action in a U.S. District Court that included the same claims Complainant alleged in her formal complaints. A review of Complainant’s civil action filing reveals that Complainant raised the same hostile work environment and reasonable accommodation claims that she alleged in her formal EEO complaints. Therefore, because Complainant filed a civil action on the same claims she set forth in her pending EEO complaints, the AJ was correct to dismiss the complaints. 0120172165 4 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed, the Agency’s final action which fully implemented the EEOC Administrative Judge’s decision to dismiss the complaint pursuant to 29 C.F.R § 1614.107(a)(3) is AFFIRMED. 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. 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). 0120172165 5 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 October 3, 2018 Date Copy with citationCopy as parenthetical citation