0120151529
08-06-2015
Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120151529
Hearing No. 440-2014-00133X
Agency No. CHI-06-0915-SSA
DISMISSAL OF APPEAL
Complainant filed an appeal with this Commission from the November 19, 2014 decision by the Equal Employment Opportunity Commission's Administrative Judge (AJ) dismissing her complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.1
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Technical Expert at the Agency's Center for Security and Integrity in Chicago, Illinois.
Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), sex (female), color (Brown), disability (mental and physical), age (54), parental status (parent of a disabled child) and reprisal for prior protected EEO activity under Title VII, the ADEA, and the Rehabilitation Act, when, on May 18 or 19, 2006 and March 2007 when a management official told staff that she should retire and on August 22, 2007, when her privacy rights were violated.
We note that this claim was raised with a series of other events which were listed as Agency No. CHI-06-0185-SSA and was the subject of EEOC Appeal No. 0120101012 (April 3, 2013). The decision in EEOC Appeal No. 0120101012 found that the Agency's pre-investigation dismissal of this claim was erroneous and remanded only this claim for investigation. As such, this claim of discrimination was investigated and Complainant requested a hearing before the AJ.
While the matter was pending before the AJ, Complainant filed a civil action in the United States District Court for the Northern District of Illinois, Eastern Division on December 14, 2011. In her civil action, Complainant alleged the events raised in her EEO complaint. On May 10, 2012, Complainant filed an Amended Compliant with the District Court. In her amended complaint, Complainant alleged that she had been subjected to discrimination and harassment between 2005 and 2010, on the bases of age, disability, sex, race, and retaliation. She noted in her amended complaint that the Agency had a history of taking adverse action and creating a hostile work environment in order to cause Complainant to choose to leave the workplace. She also alleged in her complaint that "[d]uring a management meeting, [the management official] expressed his displeasure with [Complainant's] EEO complaints, and expressed his intentions to cause [Complainant] to retire." Complainant also incorporated her appeal brief for EEOC Appeal No. 0120101020 in support for her civil action.
The Judge issued a decision in Complainant's civil action. See Murphy v. Colvin, Acting Comm'r. of Soc. Sec., 2014 WL 4694337 (N.D. Ill. Sept. 19, 2014). In his decision, the Judge noted that Complainant indicated that alleged as part of her claim of age-based discrimination that in 2006, the management official made comments to Complainant and stated that she "should 'just go ahead and retire.'" The Judge also noted that Complainant included "facts" from her appeal brief which she submitted to the EEOC. The Judge found that these facts were not supported by the record in his decision finding that the Agency was entitled to summary judgment in the civil action.
Upon review of the record, we find that Complainant raised the claim at hand in the civil action. 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 (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 (M0610)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 6, 2015
__________________
Date
1 Because the Agency did not issue a decision, the decision of the AJ became the Agency's decision by operation of law. 29 C F.R. � 1614.109.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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