Brenton O.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jul 24, 2019

2019000077 (E.E.O.C. Jul. 24, 2019)

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

Brenton O.,1
Complainant,

v.

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

Appeal No. 2019000077
Agency No. 200J-0578-2016103511

DISMISSAL OF APPEAL

On September 26, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) prior to the Agency’s issuance of its October 12, 2018 final
Agency decision finding no discrimination with regard to his complaint of 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. For the following reasons, the Commission DISMISSES
Complainant’s appeal.
BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Advanced Medical
Support Assistant at the Agency’s Medical Center in Hines, Illinois. On June 22, 2016,
Complainant filed a formal complaint, which was subsequently amended, alleging that the Agency
subjected him to discrimination and a hostile work environment on the bases of national origin
(Palestinian), disability (physical), and reprisal for prior protected EEO activity when:

1. From April 26, 2016, through the present, he was threatened with being charged absent
without official leave (AWOL) if he invoked his entitlement to leave under the Family
Medical Leave Act (FMLA);
2. On or about April 26, 2016, his supervisor threatened to remove his FMLA entitlement;

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.
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3. On or about April 26, 2016, he was required to re-file/re-certify his FMLA paperwork
even though his physician had already filled out the paperwork and it was approved by
the Agency;
4. From June 8, 2016, through the present, he has been denied a reasonable accommodation
(use of FMLA and leave without pay (LWOP));
5. During the month of September 2016, management did not pay him for days worked;
6. On February 10, 2017, his supervisor sent him an email ordering him to return to work
immediately or be charged AWOL even though management had not provided him with
a reasonable accommodation;
7. On March 14,2017, he received a proposed removal letter; and,
8. Effective May 1, 2017, he was removed from Federal employment.2

After the Agency’s investigation, Complainant requested a hearing before an EEOC
Administrative Judge on the non-mixed allegations in his complaint, but subsequently withdrew
his request and asked for a final decision from the Agency. The Agency’s final decision
determined that, with regard to Complainant’s allegation that he was denied a reasonable
accommodation, i.e., allegations 1 – 4, he had been provided a reasonable accommodation, i.e.,
FMLA leave, but that he was seeking additional leave without first establishing a medical
justification. Among other things, the Agency also found no discrimination with respect to
Complainant’s May 1, 2017, removal.3

On July 16, 2019, Complainant filed a civil action (identified as Civil Action No. 19cv4782) in
the United States District Court for the Northern District of Illinois. The record further discloses
that the claims raised therein are the same as those raised in the instant complaint. Specifically,
Complainant stated that the Agency began discriminating against him “on or about, or beginning
on or about, January 1, 2015.” When asked if he previously filed a complaint of discrimination
with the Agency asserting the acts of discrimination indicated in this court complaint, Complaint
answered, “yes, May 1, 2017.” Complainant, among other things, also alleged discrimination
based on disability, and national origin. He accused the Agency of, among other things,
terminating his employment; failing to accommodate his disabilities; failing to stop harassment;
and retaliating against him. Among the statutes that he alleged were violated by the Agency was
FMLA. In filing his civil action, Complainant attached a copy of the Report of Investigation
pertaining to his EEO complaint, along with copies of both final agency decisions, i.e., the January
8, 2018, final decision pertaining to his removal and the subsequent October 12, 2018, final

2 Although Complainant was provided a final decision, dated January 8, 2018, with mixed case
appeal rights on his removal claim, there is no evidence that he ever filed an appeal with the Merit
Systems Protection Board (MSPB) on this matter.
3 We note that, pursuant to Commission precedent, Complainant’s allegation regarding the
Agency’s proposal to remove him, i.e., allegation 7, was merged with the actual removal, i.e.,
allegation 8, given that they are based on the same set of facts. Complainant v. Dep’t of Health
and Human Services, EEOC Appeal No. 0120130459 (Aug. 28, 2014) (“a proposed removal
merges into a decision to remove”).

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decision pertaining to his non-mixed allegations and which also addressed his removal claim.
Finally, in listing the facts that supported his claim of discrimination, Complainant stated that:

The Agency’s failure to provide reasonable accommodation and allowing the
Complainant to exercise his civil rights, under the American Disability Act of 2008
(regarding major life activities such as walking, seeing, hearing and concentrating)
from October 13, 2013 - present, for an established qualified service connected
disability and serious health condition, by Agency management officials, has
resulted in a hostile work environment, harassment and discriminatory action that
has resulted in proposed suspensions, suspensions, proposed removal and
terminating the Complainant[’s] employment and being removed, from the VA
Healthcare System, on May 1, 2017 during the reasonable accommodation request
process pending medical verification. The Agency has also violated the,
Employment and Reemployment Rights of members of the Uniformed Services, 38
U.S.C. § 4313; 20 C.F.R. §§ 1002.198, 1002.225 -.226. USERRA[.]

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.” The Commission’s regulations mandate the
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 (October 19, 1989); Kotwitz v. U.S. Postal Serv., EEOC Request No. 05880114
(October 25, 1988).
CONCLUSION

Because we find that Complainant’s July 2019 civil action concerns the identical matters that are
set forth in his EEO complaint for which he received a final agency decision in October 2018,
which is the subject of the instant appeal, we hereby DISMISS Complainant’s appeal. 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.
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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

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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

July 24, 2019
Date