0120140172 & 0120141485
10-07-2014
Complainant, v. John M. McHugh, Secretary, Department of the Army (National Guard Bureau), Agency.
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army
(National Guard Bureau),
Agency.
Appeal Nos. 0120140172 & 0120141485
Agency Nos. T-2011-029-CA-A-DGH, T-2012-021-CA-A-DHO, T-2012-026-CA-A-CDNO & T-2013-001-CA-A-DNOS
DISMISSAL OF APPEALS
On October 9, 2013, and March 4, 2014, Complainant filed timely appeals with the Equal Employment Opportunity Commission (EEOC or Commission) from a final
Agency decision (FAD) dated October 1, 2013, and an EEOC Administrative Judge (AJ) decision dated January 10, 2014. In its FAD the Agency dismissed all the above complaints. The AJ separately ordered a monetary sanction against the Agency in complaint T-2011-029-CA-A-DGH. In her complaints Complainant alleged 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 her complaints, Complainant worked as an Equal Employment Opportunity (EEO) Specialist and Technician at the Agency's National Guard Bureau in Sacramento, California.
On June 7, 2011, Complainant filed formal complaint T-2011-029-CA-A-DGH (Complaint 1), as amended, alleging that the Agency discriminatorily harassed her based on her disabilities and sex (female) when on three occasions around February - March 2011, her co-worker spoke to her in a derogatory, demeaning, and threatening manner.
On June 12, 2012,1 Complainant filed formal complaint T-2012-021-CA-A-DHO (Complaint 2) (formerly referred to by the Agency and EEOC as T-2012-021-CA-A-HO) based on her disabilities and in reprisal for prior EEO activity when the Agency failed to timely process her reasonable accommodation request to work at home submitted on January 6, 2012, and she was harassed when she was asked to provide medical documentation to support her request.
On September 12, 2012, Complainant filed formal complaint T-2012-026-CA-A-CDNOR (Complaint 3) alleging that she was discriminatorily harassed based on her race (Mexican-American), color (Brown), national origin (Mexico), disabilities, and reprisal for prior EEO activity when:
1. On June 25, 2012, her request for the reasonable accommodation of working at home was denied and in connection with this was placed in an unpaid leave status and charged absence without leave (AWOL); and
2. She was terminated [effective July 6, 2012].2
On February 20, 2013, Complainant filed formal complaint T-2013-001-CA-A-DNOS (Complaint 4) (formerly referred to by the Agency and the EEOC as T-2013-02, the California tracking number) alleging that she was discriminated against based on disability and reprisal for prior EEO activity when on January 8, 2013, she received a document from the Agency's Office of Chief Counsel stating that the Agency would be conducting a military investigation into her prior EEO complaint.3
In Contreras v. Department of the Army (National Guard Bureau), EEOC Appeal No. 0120131026 (Jun. 20, 2013), the EEOC reversed the Agency's procedural dismissal of Complaint 2 and ordered the Agency to accept and investigate the complaint. In Contreras v. Department of the Army (National Guard Bureau), EEOC Appeal No. 0120131476 (Jun. 21, 2013), the EEOC reversed the Agency's procedural dismissal of Complaint 4 and ordered the Agency to accept and investigate the complaint.
Thereafter, on July 18, 2013, Complainant filed civil action complaint 2:13-cv-01440 in the United States District Court for the Eastern District of California. Based on this, the Agency communicated to the Commission that it stopped processing Complaints 2 and 4. In Contreras v. Department of the Army (National Guard Bureau), EEOC Petition No. 0420140011 (Jun. 26, 2014), the EEOC ordered the Agency to continue processing Complaints 2 and 4. It found that in the civil action complaint Complainant alleged that she was harassed when she was informed by written notice in July 2012 that she needed to report to duty with a medical clearance, and when she reported without the clearance she was immediately terminated, and that the termination was discriminatory based on her race and disability. The EEOC found that because Complaints 2 and 4 did not fall within the scope of the civil action, the Agency must continue to administratively process them. In a footnote the EEOC referred to Complainant's appeal from the Agency's October 1, 2013, FAD, and indicated it was unable to discern if the FAD covered Complaints 2 and 4 because the complaint numbers differed.
The Commission takes administrative notice that on May 27, 2014, Complainant filed a civil action 2:14-cv-01282 in the United States District Court for the Eastern District of California. The record further discloses that the claims raised therein are the same as those raised Complaints 1 through 4.4 She attached documentation from all four complaints, including our decisions in EEOC Appeal Nos. 0120131026 and 012131476. Complainant alleged therein that she filed a total of six complaints with the Agency, none of which have been properly processed, and indicated she was seeking relief on all of them in Court. The Commission takes further administrative notice that on August 1, 2014, Complainant filed civil action 2:14-cv-01820 in the above Court, which contains the same claim in Complaint 1, and the denial of reasonable accommodation claims in Complaints 2 and 3.5 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 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).6
CONCLUSION
Accordingly, Complainant's appeal is hereby dismissed. See 29 C.F.R. � 1614.409. The Agency shall terminate administrative processing of Complaints 1 through 4, as identified in this decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999). 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 7, 2014
__________________
Date
1 In Contreras v. Department of the Army (National Guard Bureau), EEOC Appeal No. 0120131026 (Jun. 20, 2013), we inadvertently indicated the complaint was filed on August 9, 2012.
2 In later withdrawing issue 2 Complainant indicated she wanted to file a civil action thereon.
3 A close review of the complaint file reveals that Complainant was referring to a letter by the Agency's Office of Chief Counsel dated January 7, 2013, to an EEOC AJ, which was copied to her, on Complaint 1. OGC argued therein that Complaint 1 should be processed using military Equal Opportunity procedures, not civilian EEO procedures.
4 As Defendants, Complainant included the National Guard Bureau, and the Secretary of the Army whom she mistakenly identified as the Secretary of the Department of Defense. We construe the civil action as including the Army as a Defendant.
5 The Court's electronic docket shows that as of October 6, 2014, the above two civil actions were still pending.
6 On or about August 27, 2014, the Commission issued to the Agency Notices to Show Good Cause Why Sanctions Should Not Be Imposed directing the Agency to submit the complaint files for EEOC Appeal Nos. 0120140172 and 0120140185, or face sanction. The Agency promptly replied by submitting the requested complaint files.
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0120140172
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120140172 & 0120141485