0520140109
04-30-2014
Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520140109
Appeal No. 0120130947
Hearing No. 490-2013-00036X
Agency No. 2003-0598-2012101619
DENIAL
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120130947 (November 7, 2013). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c).
BACKGROUND
In the appellate decision, Complainant alleged that the Agency subjected her to discrimination based on sex (female) when the Agency "continues to pay male ER physicians more than female ER physicians for performing equal work." Complainant requested a hearing before an EEOC Administrative Judge (AJ). However, prior to the hearing the Agency issued a final decision dismissing Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(3), on the grounds that Complainant raised the same matter in a civil action. The Commission affirmed the dismissal finding that the record disclosed that on October 5, 2011, Complainant filed a civil action (Case No. 4:11-cv-00734-BSM) in the United States District Court for the Eastern District of Arkansas alleging that since November 2003, the Agency had been paying female physicians at a lower rate than male physicians performing equal work. Subsequently, Complainant amended her complaint in April 2012, and filed in the United States Court of Federal Claims (Case No. 1:12-0208-LB). Therein, Complainant alleged that from November 2003 to the present and ongoing, the Agency violated the Equal Pay Act by discrimination on the basis of sex by paying female physicians at rates less than the rates at which it pays male physicians in the same establishment for equal work on jobs which require equal skill, effort and responsibility, and which are performed under similar working conditions.
The previous decision determined that the claims raised in Complainant's civil action were the same as those raised in the instant EEO complaint, and, pursuant to 29 C.F.R. � 1614.409, affirmed the dismissal of Complainant's complaint. The previous decision also noted that since Complainant had already filed a request for a hearing on her complaint, the Agency should not have issued a decision dismissing Complainant's complaint, but, in the interest of judicial economy, found that dismissal of Complainant's complaint was proper.
REQUEST FOR RECONSIDERATION CONTENTIONS
In Complainant's request for reconsideration, she argued that the dismissal of her EEO complaint would force her to file her Title VII EEO claims in U.S. District Court, which would cause resources to be wasted. Complainant also asserts that the civil action is not in U.S. District Court where claimants must file their Title VII case, but was instead filed in the U.S. Court of Federal Claims because the U.S. District Court does not have jurisdiction over clams against the United States for more than $10,000. Further, Complainant maintains that no civil action has been filed under Title VII, but under the Equal Pay Act, and that her Title VII EEO claim cannot be joined with the Equal Pay Act claim because the Court of Federal Claims does not have jurisdiction over Title VII claims.
ANALYSIS AND FINDINGS
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to deny the request. We find that the request fails to show that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. As the previous decision properly stated our regulations provide that the filing of a civil action shall terminate the Commission's processing of the appeal. Although there may be consequences that Complainant and her attorney must face because they filed a civil action, there is no persuasive evidence that the previous decision erred. Accordingly, the decision in EEOC Appeal No. 0120130947 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
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
__4/30/14________________
Date
2
0520140109
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520140109