Clinton C.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Mar 28, 2019

0120180144 (E.E.O.C. Mar. 28, 2019)

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

Clinton C.,1
Complainant,

v.

Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120180144

Agency No. PHI-17-0046-SSA

DISMISSAL OF APPEAL

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) from the September 4, 2017, 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.

At the time of events giving rise to this complaint, Complainant worked as a Senior Attorney
Advisor, GS-0905-13, in the Agency’s Administrative Law Unit in Mars, Pennsylvania. On
January 20, 2017, Complainant filed a formal complaint alleging that the Agency subjected him
to discrimination on the bases of race (Caucasian), sex (male), and in reprisal for prior protected
EEO activity when:

1. On November 20, 2016, he received notice that he was not selected for an
Administrative Law Judge position under Vacancy Announcement Number
ALJ2013-47661; and

2. On November 20, 2016, he was subjected to disparate impact based on race and sex
by the Agency’s selection criterion and application of the “three-strike” rule when
he was not selected for an Administrative Law Judge position under Vacancy
Announcement Number ALJ2013-47661.

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.
0120180144

2
On February 13, 2018, Complainant filed a civil action (identified as Civil Action No. 2:18cv193)
in the United States District Court for the Western District of Pennsylvania.2 The record further
discloses that the claims raised therein are the same as those raised in the instant complaint. 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 (October
19, 1989); Kotwitz v. U.S. Postal Serv., EEOC Request No. 05880114 (October 25, 1988).

Accordingly, Complainant’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.
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.

2 According to the court’s online record system, the civil action is pending as of March 26, 2019.
0120180144

3
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

March 28, 2019
Date