Luigi H.,1 Complainant,v.Steven T. Mnuchin, Secretary, Department of the Treasury (U.S. Mint), Agency.

Equal Employment Opportunity Commission

Oct 25, 2018

0120182739 (E.E.O.C. Oct. 25, 2018)

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

Luigi H.,1
Complainant,

v.

Steven T. Mnuchin,
Secretary,
Department of the Treasury
(U.S. Mint),
Agency.

Appeal No. 0120182739

Agency No. MINT-17-0812-F

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated July 2, 2018, dismissing a formal
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.

BACKGROUND

During the period at issue, Complainant worked as the Associate Director of Environment,
Safety Health at the Agency’s Headquarters in Washington, District of Columbia.

On August 6, 2014, Complainant filed a civil action (identified as Civil Action No. 14-1340) in
the United States District Court for the District of Columbia.

On September 30, 2015, Complainant filed an amended complaint in the United States District
Court. In Civil Action Number 14-1340, Complainant alleged that he was discriminated against
based on his race, sex, and in retaliation when, among other matters, he was removed as
Associate Director of Sales and Marketing for the Agency and involuntarily reassigned to a
previously non-existent, non-supervisory position called the "Executive Lead," and a Caucasian
male who had not engaged in EEO activity was placed in the position of Associate Director of

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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Sales and Marketing. Complainant also alleged that on July 31, 2014, he was reassigned again to
the previously non-existent position of Associate Director for Environment, Safety, and Health,
the duties of which had been previously performed by a GS-14 grade level employee. A jury trial
was held.

On August 22, 2017, Complainant contacted an EEO Counselor. Complainant stated that during
a July 10, 2017 meeting with the Acting Principal Director, he requested to be appointed to the
position of Chief Financial Officer (“CFO”). Complainant explained that he had noted that
numerous colleagues were afforded career advancing positions without ever having to compete
for such positions. Complainant wanted to be provided with the same non-competitive
opportunities as his colleagues. Complainant alleged that he was informed that the CFO position
would be announced, and that if he was interested, he should apply for this position.
Complainant applied for the position. Complainant felt that he was treated differently from his
Caucasian colleagues who were appointed to higher level positions non-competitively.

On October 6, 2017, Complainant filed a formal complaint alleging that the Agency subjected
him to discrimination on the bases of race, and in reprisal for prior protected EEO.

On October 23, 2017, the Agency accepted Complainant’s claim. The Agency determined that
Complainant's claim was comprised exclusively of the following matter:

whether Complainant was subjected to discrimination based on race, and in
reprisal for prior protected EEO, when:

1. management failed to develop him for management positions, as
evidenced by the failure to provide him with non-competitive promotional
opportunities, such as "acting" positions. This occurred most recently on
September 27, 2017, when management did not place him into the
position of Acting Associate Director of Manufacturing.

On October 31, 2017, Complainant’s counsel emailed the Agency, and contended that the
accepted claim did not properly frame Complainant’s claim. Specifically, Complainant’s counsel
expressed deep concern that the investigation would not be thorough or complete if reference to
the CFO claim, referenced above, was not addressed. Additionally, Complainant’s counsel stated
that the claim identified by the Agency only referred to management’s refusal to place
Complainant into acting positions, which was not applicable to Complainant’s concerns that he
was not placed into the CFO position as requested.

On November 2, 2017, the Agency responded that it understood Complainant’s concerns, but did
not agree that the formal complaint needed to be revised.

The record reflects that, on April 3, 2018, a pretrial conference was held for as Civil Action No.
14-1340. During the pre-trial conference, discussion regarding Complainant’s request to be
placed non-competitively in the Chief Financial Officer’s position was discussed.
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Specifically, whether Complainant’s request to be placed in the CFO position should be included
during the trial. The discussion was allowed at trial.

On April 19, 2018, a jury verdict for civil action 14-1340 was rendered in Complainant’s favor.
On May 23, 2018, Complainant filed a sealed motion with multiple exhibits regarding the civil
action. On May 29, 2018, the Agency filed a motion to extend the time to oppose Complainant's
motion for equitable relief.

On July 2, 2018, the Agency determined that the claims raised by Complainant in the civil action
"sufficiently include the claims raised" in the instant complaint such that the claim must be
dismissed pursuant to 29 C.F.R. §1614.107(a)(3). Therein, the Agency dismissed Complainant’s
formal complaint.

On August 3, 2018, Complainant appealed the Agency’s dismissal. Complainant argue that the
Agency’s dismissal was improper because the claims raised in the formal complaint were not
“identical” to those presented in the civil action. Complainant pointed to two reasons in support
of this assertion: 1) the Agency incorrectly framed the formal complaint thereby rendering it
similar to the civil action, and thus subject to dismissal; and 2) the Agency incorrectly focused
upon the similarity between the equitable relief requested in both proceedings.

The Agency opposed Complainant’s appeal, arguing that the provided arguments were
unpersuasive. The Agency argued that the common theme between the instant formal complaint
and the civil action was that Complainant was allegedly denied career enhancing, non-
competitive appointments to other permanent or acting positions.

ANALYSIS AND FINDINGS

The Commission's regulation found at 29 C.F.R § 1714.107(a)(3) provides that “[an] agency
shall dismiss an entire complaint that is the basis of a pending civil action in a United States
District Court in which the complainant is a party provided that at least 180 days have passed
since the filing of the administrative complaint, or that was the basis of a civil action decided by
a United States District Court in which the complainant was a party.” The 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. Shapiro v. Dept. of the Army, EEOC Request No. 05950740 (October 10, 1996).

In the instant case, Complainant’s civil action contains allegations that are broad enough to
encompass the claims at issue in the instant appeal. Katz-Pueschel v. Dep't of Transportation,
EEOC Appeal No. 01970644 (Feb. 14, 2001); request for reconsid. denied, EEOC Request No.
05A10460 (June 21, 2001); see also Jackson v. Dep't of the Air Force, EEOC Request No.
05940414 (Sept. 1, 1994) (finding that a fair reading of the language of the complainant's civil
action was so “broad and all-inclusive” that it completely overlapped his EEO complaint claims).
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The drafters of the EEOC Regulations intended to take an EEO claim out of the administrative
process when a complainant avails him or herself to a civil action in a district court. The matter
of Complainant’s request to be non-competitively placed as the Chief Financial Officer was
addressed during Civil Action 14-1340, and presented again in the instant complaint. While the
Agency did not frame the claim to specifically include Complainant’s request, it is clear from the
record that Complainant filed the instant complaint regarding his request to be placed as the
CFO.

Accordingly, the Commission AFFIRMS the Agency’s dismissal pursuant to 29 C.F.R. §
1614.107(a)(3).

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).
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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, Director
Office of Federal Operations
October 25, 2018__________________
Date