0120160977
04-19-2016
Candance C.,1 Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service (IRS)), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Candance C.,1
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service (IRS)),
Agency.
Appeal No. 0120160977
Hearing No. 531-2016-000774X
Agency No. IRS-15-0938-F
DECISION
On January 31, 2016, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated December 30, 2015, fully implementing the decision of an Equal Employment Opportunity Commission Administrative Judge (AJ) dismissing her 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Appeals Officer, GS-13 at the Agency's IRS Baltimore Appeals Office in Maryland.
On January 27, 2015, Complainant filed a formal complaint, as amended, alleging that the Agency subjected her to disparate treatment or hostile work environment discrimination on the bases of race (Black), sex (female), disability, and reprisal for prior protected EEO activity. The Agency defined the complaint as regarding multiple incidents from November 2014 to September 2015.
On July 29, 2015, prior to the completion of the investigation, Complainant filed a request for a hearing before an EEOC AJ, which she termed as filing an appeal from her complaint.
On December 30, 2015, the AJ dismissed Complainant's complaint "with prejudice" on the grounds that on August 26, 2015, she filed a civil action complaint 1:15-cv-2527 in the United States District Court for the District of Maryland which covered the issues in her administrative complaint. The AJ cited 29 C.F.R. � 1614.107(a)(3). In her civil action complaint, Complainant wrote it was being filed in compliance with 29 C.F.R. � 1614.407 as more than 180 days expired from the date she filed her administrative complaint on January 27, 2015.
On appeal, Complainant does not contest that the civil action complaint covers the matters in her administrative complaint. Rather, she argues that in response to the civil action the AJ should have stopped processing her administrative complaint, not dismissed it with prejudice.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(3) provides that an Agency shall dismiss a complaint that is the bases of a civil action decided by a United States District Court in which the Complainant was a party.2 Such is the case here.
But we advise the parties that if the United States District Court dismisses Complainant's civil action without prejudice in the future, and she promptly asks the Agency to resume processing her administrative complaint, the Agency should put in a request to the EEOC AJ to do so. Further, if processing does not resume in this scenario, then Complainant could promptly file an appeal with this office. For example, where the Court dismisses a civil action without prejudice for failure to exhaust administrative remedies, the administrative complaint is not properly subject to dismissal on the grounds that a civil action was filed. Rudolph v. Department of Veteran Affairs, EEOC Appeal No. 01975221 (April 16, 1998). Likewise, where an Agency dismissed an administrative EEO complaint on the ground that it was the basis of a pending civil action in a United States District Court, and after her appeal to this office the District Court dismissed the civil action for failure to exhaust administrative remedies, we reversed the Agency's dismissal. Cooper v. Department of Defense (Defense Finance & Accounting Service), EEOC Appeal No. 0120083148 (Oct. 7, 2008). While the AJ properly dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(3), this is subject to the above proviso, albeit we are not ruling on something that has not yet occurred.
The FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 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, 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 (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 19, 2016
__________________
Date
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.
2 The Court's electronic docket indicates that as of April 15, 2016, the civil action was still pending.
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