0120172849
09-14-2018
Cherie F.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Cherie F.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120172849
Agency No. ARIMCOMHQ15JAN00208
DISMISSAL OF APPEAL
On July 28, 2017, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the July 6, 2017 final Agency decision (FAD) awarding no compensatory damages and no attorney fees for part of her complaint of unlawful employment discrimination in violation of 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 a Nurse (Clinical/Ambulatory) Psychiatric - GS-0610-10 at the Agency's U.S. Army Medical Command, Martin Army Community Hospital in Fort Benning, Georgia.
On March 5, 2015, Complainant filed an equal employment opportunity (EEO) complaint alleging in part that she was discriminated against based on her disability (post-traumatic stress disorder) when on April 12, 2012, she requested reasonable accommodation, which was not processed in a timely manner by management.
In a FAD dated March 31, 2017, the Agency found discrimination on the above issue because the Activity unduly delayed addressing Complainant's request for reasonable accommodation, albeit the Agency found Complainant initially made her request for reasonable accommodation on September 4, 2012. The Agency ordered the responsible Activity to calculate damages, if any, and found Complainant was entitled to attorney fees. Finding that Complainant did not submit an attorney fee petition, the Agency awarded no attorney fees.
On November 27, 2017, Complainant filed a civil action (identified as Civil Action No. 4:17-cv-00232) in the United States District Court for the Middle District of Georgia.2 The record further discloses that the matters raised therein are the same as those specifically identified herein. 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 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).
Accordingly, Complainant's appeal is 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.
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. 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
September 14, 2018
__________________
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 shows that as of September 13, 2018, the civil action is still pending.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120172849
4
0120172849