[Redacted], Bart L., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency.

Equal Employment Opportunity Commission

Mar 10, 2021

Appeal Nos. 2020000098, and, 2020000100 (E.E.O.C. Mar. 10, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bart L.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency. Appeal Nos. 2020000098 and 2020000100 Agency Nos. FSIS-2017-00821 and FSIS-2018-00778 DISMISSAL OF APPEALS On August 28, 2019, Complainant filed two separate appeals, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 19 and 29, 2019 final decisions concerning his equal employment opportunity (EEO) complaints alleging 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. Since the Commission may, in its discretion, consolidate two or more complaints of discrimination filed by the same complainant, we have consolidated them for a joint appellate decision. See EEOC Regulation 29 C.F.R. § 1614.606. For the following reasons, the Commission DISMISSES the consolidated appeals. Appeal No. 2020000098 Agency No. FSIS-2017-00821 On November 6, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to a hostile work environment and discriminated against him on the bases of religion (Christian), race (Black), national origin (African American), disability (torn hamstring), and reprisal for protected EEO activity when: 1. on October 4, 2017, Complainant’s supervisor denied him annual leave for being ten minutes late to work; 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. 2020000098 and 2020000100 2 2. on October 30, 2017, Complainant’s supervisor issued him a rating of Fully Successful on his 2017 Performance Appraisal; 3. on November 2, 2017, management charged him as Absent Without Leave (AWOL) for eight (8) hours, and denied his request for Leave Without Pay (LWOP), questioned his Workmen’s Compensation claim and usage of LWOP; and, 4. since March 2017, Complainant has been subjected to various acts of harassment, including but not limited to: a. on March 10, 2017, Complainant’s supervisor threatened to deny his request for Family Medical leave (FMLA); b. on April 10, 2017, Complainant’s supervisor questioned the validity of his medical documentation, confronting him and stated, “Why do you always have to be right?” and stated that the document was acceptable; c. on July 27, 2017, Complainant’s supervisor questioned his request for sick leave and stated that he did not have an emergency before he approved his usage of sick leave; d. on October 30-21, 2017, Complainant’s supervisor yelled at him in front of his coworkers and sated they are not going to keep covering him for FMLA used for his mother, and he had not properly informed management of his need for FMLA usage; and, e. on November 2, 2017, Complaint’s supervisor threatened to deny his leave request if he did not provide 30 days’ notice and started taking care of his mother was not an emergency. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). On June 22, 2018, Complainant requested a hearing. On May 20, 2019, the AJ remanded the matter to the Agency for a Final Agency Decision (FAD) per Complainant’s withdrawal request. On July 29, 2018, the Agency issued its FAD which concluded that Complainant failed to prove that the Agency subjected him to a hostile work environment or discrimination as alleged. Appeal No. 2020000100 and Agency Case No. FSIS-2018-00778 On October 10, 2018, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of religion (Christian and Jehovah’s Witness) and reprisal for prior protected EEO activity when: 2020000098 and 2020000100 3 1. on May 11, 2018, June 28, 2018, and July 25, 2018, management denied Complainant’s annual and Family Medical Leave Act (FMLA) leave requests; and, 2. on May 23, 2018, management issued him a Notice of Proposed 14-Day Suspension. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). On May 20, 2019, Complainant requested a final Agency decision. On July 19, 2019, the Agency issued its final decision where it determined that Complainant failed to demonstrate that the Agency had subjected him to a hostile work environment or discrimination as alleged. These appeals followed. In addition, on August 18, 2020, Complainant filed a civil action with the District Court for the Western District of Missouri, Southwestern Division in which he specifically cited to and attached his two2 EEO complaints. Fredric Travis v. Sonny Perdue, et al., Case No. 3:20-05071-CV-RK. The Agency requested the Commission dismiss the matter pursuant to 29 C.F.R. § 1614.409, as the Agency asserts that the filing of the civil action terminated the processing of both appeals. The Commission's 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 (Oct. 19, 1989); Kotwitz v. U.S. Postal Serv., EEOC Request No. 05880114 (Oct. 25, 1988). See also Anglea R. v Dep’t of the Army, EEOC Appeal No. 0120141306 (Nov. 2, 2016). In the instant case, Complainant’s civil action contains the same allegations that are at issue in the instant appeals. See Katz-Pueschel v. Dep't of Transp., 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). 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. Therefore, as Complainant espoused his right to go to district court, we must apply section 1614.409 and dismiss the matter in its entirety. Accordingly, the Commission DISMISSES Complainant's appeals pursuant to 29 C.F.R. § 1614.409. 2 The District Court Judge noted that, in his civil action, Complainant referred to another Agency complaint, FSIS-2017-00264 which is pending before the Commission in EEOC Appeal No. 2020001144. However, since Complainant had not pleaded that administrative charge and only referenced it by number in a response filing, the District Court Judge did not consider it. 2020000098 and 2020000100 4 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2020000098 and 2020000100 5 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 March 10, 2021 Date