0120182599
09-11-2018
Nakesha T,1 Complainant, v. Ryan K. Zinke, Secretary, Department of the Interior, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Nakesha T,1
Complainant,
v.
Ryan K. Zinke,
Secretary,
Department of the Interior,
Agency.
Appeal No. 0120182599
Hearing No. 570-2015-00534X
Agency No. DOI-OS-13-0171
DECISION
On July 17, 2018, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) after the Agency did not issue a final action following the May 9, 2018, decision by an Equal Employment Opportunity Commission Administrative Judge's (AJ) to dismiss 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. Since the Agency did not issue a final action, the AJ's decision became the Agency's final action.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by the Agency as an Attorney-Advisor (Administrative Judge - Indian Matters) - GS-0905-15 at the Office of Hearings and Appeals, White Earth Land Development Act (WELSA) Hearings Division in Bloomington, Minnesota. She presided over Indian probate matters and WELSA cases.
On June 9, 2013, Complainant filed an Equal Employment Opportunity (EEO) complaint, as amended, alleging that the Agency subjected her to discrimination, harassment, and a hostile work environment based on her sex (female) and reprisal for prior protected EEO activity under Title VII. Some examples thereof occurred when:
1. On February 20, 2013, her request for reconsideration of the "minimally successful" rating she received on December 20, 2012, was denied;
2. On February 19, 2013, her request for an informal grievance was denied;
3. As of June 9, 2013, management failed to respond to her formal grievance, dated April 3, 2013;
4. From March 26 through March 28, 2013, she was suspended for three days without pay;
5. On April 22, 2013, her assigned duty to process new WELSA Act cases was taken away and reassigned to another office, and on June 6, 2013, she was directed to train persons that assumed her duty;
6. On July 11, 2013, she received a "Notice of Proposal to Suspend" her from her position for five days without pay;
7. Management denied her access to equally qualified support staff when, on May 30, 2013, her supervisor refused to fill the vacant Paralegal positions; and on June 6, 2013, she refused to fill the vacant Legal Assistant position;
8. Since January 30, 2013, her supervisor has subjected her to ongoing verbal abuse and hostility, threatened disciplinary actions, and defamed her character;
9. On unspecified dates, management has made unfounded and false defamatory statements in her performance appraisal and in disciplinary actions against her, negatively impacting her ability to seek other employment;
10. On September 26, 2013, she received a "Decision to Suspend" letter suspending her for five (5) days without pay for Conduct Unbecoming a Supervisor; and
11. On October 24, 2013, management dismissed her informal grievance.
Following an investigation, Complainant in February 2015, requested a hearing before an AJ. In May 2018, the AJ dismissed Complainant's complaint because it was the basis of a pending civil action she filed in a United States District Court against the Agency. The instant appeal followed.
Complainant argues that her civil action regards her termination in July 2014 via reduction-in-force (RIF). She filed the civil action after the EEOC, in May 2017, denied her petition from the Merit Systems Protection Board's decision to uphold her removal and finding no discrimination. Complainant argues that her civil action only regards her removal, and the other matters therein (which were in her EEO administrative complaint) are background facts to support her discrimination removal claim.
In opposition to the appeal, the Agency argues that Complainant alleged the same incidents as actionable claims in her EEO administrative complaint and civil action amended complaint, and identifies specific examples of this.
ANALYSIS AND FINDINGS
On June 13, 2017, Complainant filed a civil action complaint (identified as Civil Action No. 0:17-cv-02017) in the United States District Court for the District of Minnesota, which at the request of the Court to substitute her real name for a pseudonym, she amended on April 13, 2018.2
After reviewing the civil action amended complaint, we agree with the AJ's finding and the Agency's argument in opposition to Complainant's appeal that the claims raised therein are the same as those raised in the instant EEO complaint, i.e., not just background information to support her discrimination removal claim, but actionable claims. 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 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, the FAD is AFFIRMED and 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 11, 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 7, 2018, the civil action is still pending.
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