[Redacted], Brant C., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jun 28, 2021

Appeal No. 2020002351 (E.E.O.C. Jun. 28, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Brant C.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020002351 Agency No. 2004-0540-2019102814 DISMISSAL OF APPEAL Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's February 10, 2020, final decision finding no discrimination with regard to his 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Timekeeper at the Agency’s Patient Care Services, Veterans Affair Medical Center in Clarksburg, West Virginia. On July 3, 2019, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination and harassment on the bases of sex (male) and disability (sciatic nerve damage, degenerative disc disease, and Post Traumatic Stress Disorder), and in reprisal for prior protected EEO activity, when: 1. on or about September 13, 2018, Complainant was issued a proposed Suspension Without Pay for seven (7) days; 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. 2020002351 2 2. on October 27, 2018, the EEO Program Manager informed Complainant that he was “restricted by upper management” in what he could investigate regarding disputed allegations of sexual harassment against Complainant; 3. in October 2018, Complainant was Suspended Without Pay for three (3) days; 4. in November 2018, the Associate Director of Patient Care Services, Nurse Executive (ADPCS) denied Complainant’s reasonable accommodation request to telework and to be removed from ADPCS’s supervision; 5. on November 21, 2018, Complainant was informed that he was not selected for the position of Lead Medical Support Assistant, Announcement Number IMP-10362958-19- TG; 6. on November 26, 2018, Complainant was informed that he was not referred for the position of Medical Supply Technician, Announcement Number IMP-10353105-19-TG; 7. on April 1, 2019, the Associate Director reassigned Complainant to the laundry facility; 8. on April 1, 2019, the Human Resources Officer denied Complainant’s reasonable accommodation request to be moved out of the laundry facility due to his physical limitations; 9. on April 2, 2019, a Human Resources Specialist informed Complainant that the Facility Director denied his requests to be placed on administrative leave for March 9, 19, and 29, 2019; 10. in April 2019, the Safety Specialist advised Complainant’s supervisor to confine Complainant to the laundry facility; 11. on April 17, 2019, a Human Resources Specialist denied Complainant’s request for 21 hours of compensatory time, which he earned based on a verbal agreement with ADPCS in August 2018. The Agency eventually granted Complainant’s request in May 2019; 12. on April 19, 2019, a Human Resources Specialist failed to address Complainant’s request about his status of returning to work; 13. on June 3, 2019, Complainant became aware that his position as a Program Support Assistant was being filled under an internal vacancy announcement; 14. on March 1, 2019, Complainant was issued a Notice of Proposed Removal; and 15. since approximately April 5, 2019, Complainant was placed in a Leave Without Pay status. 2020002351 3 On August 28, 2020, Complainant filed a civil action (identified as Civil Action No. 1:20-cv- 215)2 in the United States District Court for the Northern District of West Virginia. The record further discloses that the claims raised therein are the same as those raised in the instant complaint, and that Complainant specifically noted in his civil action that he was properly filing suit more than 180 days after he filed his EEOC appeal. 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 (Oct. 19, 1989); Kotwitz v. U.S. Postal Serv., EEOC Request No. 05880114 (Oct. 25, 1988). CONCLUSION Accordingly, Complainant’s appeal is hereby dismissed. See 29 C.F.R. § 1614.409. 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 2 The Agency identified Complainant’s case number as 5:20-cv-11111; however, the Commission was unable to identify this complaint as Complainant’s civil action. 2020002351 4 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). 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. 2020002351 5 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 June 28, 2021 Date