Nobuko M.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jan 10, 2020

2019001415 (E.E.O.C. Jan. 10, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nobuko M.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2019001415 Hearing Nos. 410-2016-00509X and 410-2019-00395X Agency Nos. 2001-V107-2014104020 and 200I-V107-2018105118 DISMISSAL OF APPEAL Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a November 19, 2018 Notice of an EEOC Administrative Judge’s decision concerning a 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.2 BACKGROUND During the period at issue, Complainant worked as a Financial Quality Insurance Manager, GS 14, at the Agency’s VISN 7 Southeast Network Office in Duluth, Georgia. 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 Notice of the decision does not indicate the claims at issue but includes Agency No. 2001- V107-2014104020 and EEOC Hearing No. 410-2016-00509X in the caption. There is no final Agency order in the record indicating whether or not the Agency implemented the AJ’s presumed decision. 2019001415 2 On October 31, 2014 and September 24, 2018,3 Complainant filed two formal EEO complaints claiming that the Agency discriminated against and subjected her to discrimination based on race (White), sex (female), and in reprisal for prior protected EEO activity. It is unclear from the record the contents of the AJ’s November 19, 2018 presumed notice and presumed order from which Complainant filed the instant appeal. ANALYSIS AND FINDINGS Based on our review of the record, we find that the formal complaints are not properly before the Commission on appeal. The record indicates that, by a Case Management and Scheduling Order, the assigned AJ consolidated both of Complainant’s complaints on May 28, 2019. The record further indicates that the Agency subsequently filed a Motion for Summary Judgment on December 18, 2019, after the November 19, 2018 Notice and Order from which Complainant filed the instant appeal. EEOC records show that both complaints are currently still pending before the assigned AJ. Therefore, we find that the instant appeal is premature and is not properly before the Commission. Therefore, Complainant’s appeal in this matter is DISMISSED. 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. 3 Complainant filed Agency No. 2001-V107-2014104020 (EEOC Hearing No. 410-2016- 00509X) on October 31, 2014 and Agency No. 200I-V107-2018105118 (EEOC Hearing No. 410-2019-00395X) on September 24, 2018. 2019001415 3 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 January 10, 2020 Date