0120181265
04-12-2018
Polly P.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Polly P.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120181265
Agency No. 2003-0436-2017100778
DISMISSAL OF APPEAL
On February 19, 2018, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated January 31, 2018, dismissing 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by the Agency as an Administrative Assistant, GS-303-06 in the Veterans Affairs Montana Healthcare System in Great Falls, Montana.
On February 21, 2017, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency subjected her to a hostile work environment leading to her constructive discharge based on her national origin/race (Hispanic), sex (female), disability, age (59 - 60), and reprisal for prior protected EEO activity under Title VII, the Rehabilitation Act, and the ADEA when:
1. In 2015, the Associate Chief of Staff (ACOS) Ambulatory Care, assigned her additional duties when the Administrative Assistant positions were vacant for the Southeast, Western and Central Regions without additional compensation in pay.
2. In April 2015, the ACOS assigned her to implement the Primary Care Management Module (PCMM) Web program.
3. In June 2015, the ACOS assigned her to back up the PCMM Coordinator for VA Montana without additional compensation in pay.
4. On October 27, 2015, she became aware of her failure to be promoted to the PCMM, announcement number VC-15-241-15322344-BU, GS-7 position.
5. From November 30, 2015 thru November 28, 2016, the ACOM failed to act on her requests for reasonable accommodation.
6. In April 2016, she was not selected for the detail for the PCMM Coordinator GS-9 position during the incumbent's maternity leave.
7. After applying in June 2016, and being interviewed for the PCMM Coordinator (Internal GS-7) position, she was not selected.
8. On October 3 and 5, 2016, the Chief, Northeast Region, a physician who in his second role was a primary care provider reporting to the ACOM, subjected her to sexual harassment when he touched her numerous times and made unwanted and inappropriate comments.
9. On October 7, 2016, the ACOM contacted her at home and stated he would have her continue working with the person directly above.
10. On February 20, 2017, her desk was cleaned out the security code to her work area was changed, preventing her access, by the Nurse Manager.
11. On February 21, 2017, she was constructively discharged.
Following an investigation and some additional procedural processing, the Agency dismissed Complainant's complaint for filing a civil action with respect to the 11 incidents recounted above. The instant appeal followed.
On appeal Complainant makes no argument, i.e., she does not specifically dispute the Agency's finding.
On October 13, 2017, Complainant filed a civil action (identified as Civil Action No. 4:17-cv-00113) in the United States District Court for the District of Montana, which the Court designated as her "lodged" complaint until after denying her motion to proceed in forma pauperis and she paid her court filing fees. Thereafter, in December 2017, the Court removed the designation of "lodged." The record further discloses that the claims raised therein are the same as those raised in the instant complaint, i.e., she attached to her civil action papers the Agency's EEO report of investigation, which listed all the above claims.
EEOC Regulation 29 C.F.R. � 1614.107(a)(3) provides that prior to the request for a hearing in a case, the Agency shall dismiss an entire complaint that 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 in which the complainant is a party.2 EEOC Regulation 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 hereby 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
April 12, 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 docketing system reflects that as of April 11, 2018, Complainant's civil action is still pending.
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