Sulema B.,1 Complainant,v.Rick Perry, Secretary, Department of Energy, Agency.

Equal Employment Opportunity Commission

Nov 14, 2018

0120172471 (E.E.O.C. Nov. 14, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Sulema B.,1
Complainant,

v.

Rick Perry,
Secretary,
Department of Energy,
Agency.

Appeal No. 0120172471

Agency No. 13-0104-HQ-HG

DISMISSAL OF APPEAL

On July 11, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from the June 8, 2016 final Agency decision (FAD) finding
no discrimination on 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was employed by the Agency as
an Attorney-Examiner, GS-0905-13, at the Employee Protections & Exceptions Division, Office
of Hearings & Appeals in Washington, DC.

On October 8, 2013, Complainant filed an equal employment opportunity (EEO) complaint
alleging, in relevant part, that the Agency subjected her to discrimination and harassment based on
reprisal for prior protected EEO activity under Title VII when at the behest of the Agency there
was an additional Office of Personnel Management (OPM) security clearance investigation on her
in 2012, without her knowledge.

The Agency procedurally dismissed the entire complaint, and the Commission reversed on the
above allegation. Sulema B. v. Energy, EEOC Request No. 0520140497 (Apr. 8, 2016).

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.
0120172471

2
Following an investigation, Complainant was given election rights for a hearing or a decision
without a hearing, and elected the latter. Nevertheless, a supplemental investigation was
conducted, Complainant received election rights again, and elected a decision without a hearing.
To avoid a conflict of interest, the Agency entered into an agreement with the Department of the
Treasury to process the complaint, and it conducted the investigation and issued the FAD.2 The
FAD finding was that no discrimination occurred. The instant appeal followed.

On August 4, 2015, Complainant filed a civil action, as amended, (identified as Civil Action No.
1:15-cv-01261) in the United States District Court for the 1:15-cv-01261. The record further
discloses that the claims raised therein include the same as those raised in the instant complaint.
In fact, on August 25, 2017, the Court denied the Agency’s motion for summary judgment
regarding the very claim at issue, and opined this was an important part of Complainant’s case.3
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).
CONCLUSION

Accordingly, 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.

2 While it is unclear, the record suggests that the United States Postal Service may have conducted
the supplemental investigation.

3 A review of the Court’s electronic docket shows that as of November 9, 2018, the civil action is
still pending.
0120172471

3
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.

0120172471

4

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

November 14, 2018
Date