0120142825
05-27-2016
Michelle G.1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Michelle G.1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120142825
Agency No. 200H-0541-2013103127
DISMISSAL OF APPEAL
Complainant filed an appeal with this Commission from the June 20, 2014 final Agency decision (FAD) finding no discrimination with regard to 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Licensed Practical Nurse, GS-4 at the Agency's Louis Stokes Veterans Affairs Medical Center in Cleveland, Ohio.
On August 14, 2013, Complainant filed a formal complaint which the Agency defined as alleging it discriminated against her based on her race (Caucasian), sex (female), and reprisal for prior protected EEO activity, as applicable, when:
1. Between Summer 2012 and March 21, 2013, she was sexually harassed with respect to inappropriate touching, emails, and comments of a sexual nature by a co-worker and management failed to take appropriate action;
2. On May 9, 2013, she was subjected to disparate treatment with respect to management issuing her a Report of Contact, dated October 25, 2012; and
3. Between March 28, 2013 and May 9, 2013, she was subjected to hostile work environment harassment with respect to: (a) one of her co-workers threatening to physically harm her, making a statement to her to the effect of "you got what you deserved;" and, (b) receiving a Report of Contact dated October 25, 2012, as a result of complaining of sexual harassment.
On February 3, 2016, Complainant filed a civil action amended complaint (identified as Civil Action No. 1:15-cv-02384) in the United States District Court for the Northern District of Ohio. The record further discloses that the claims raised therein are the same as those raised in the instant complaint. With the amended complaint, Complainant included copies of the June 20, 2014 FAD, her notice of appeal to the Equal Employment Opportunity Commission (EEOC), and EEOC's acknowledgment of the appeal which advised the docket number was 0120142825.2
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).
CONCLUSION
Accordingly, Complainant's appeal is hereby dismissed. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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. The requests 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 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
May 27, 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 shows that as of May 25, 2016, the civil action was still pending.
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