0120122158
10-10-2012
Kimberly George, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Kimberly George,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120122158
Agency No. 2004-0558-2009103365
EEOC Hearing No. 430-2010-00182X
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated April 2, 2012, dismissing 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 worked as a Medical Support Assistant at its Veterans Affairs Medical Center in Durham, North Carolina. On August 6, 2009, she filed a formal complaint alleging that the Agency discriminated against her based on her sex (female) and reprisal for prior protected equal employment opportunity (EEO) activity. Complainant requested a hearing before an EEOC Administrative Judge (AJ), who dismissed the hearing request because Complainant failed to comply with the AJ's orders on discovery.
Thereafter, on July 26, 2011, the Agency issued a FAD finding that Complainant was sexually harassed by her team leader; and was not retaliated against for prior protected EEO activity when she was charged absence without leave (AWOL) on May 29, 2009, issued a letter of instruction dated June 22, 2009, and was terminated from her probationary position on August 1, 2009. In the FAD the Agency directed its Office of Resolution Management (ORM) to conduct a supplemental investigation to get evidence on compensatory damages and explained that its Office of Employment Discrimination Complaint Adjudication (OEDCA) would issue a final decision on damages. The FAD contained appeal rights to the Commission and to file a civil action in the appropriate United States District Court. Pursuant to the supplemental investigation Complainant submitted evidence in support of her claim for compensatory damages.
Complainant did not appeal the July 26, 2011, FAD to the Commission. Instead, on October 24, 2011, she filed a civil action in the United States District Court for the Middle District of North Carolina, civil action #1:11-cv-00898. Therein she recounted the team leader's sexual harassment against her and the alleged reprisal for EEO activity. In the count section of the civil action complaint Complainant charged the Agency with reprisal discrimination.
On April 2, 2012, the Agency issued another FAD dismissing Complainant's administrative complaint for filing a civil action on the same matter. It concluded that Complainant's entire administrative complaint, including her potential entitlement to compensatory damages, must be dismissed because it was the subject of a pending lawsuit filed by Complainant.
On appeal Complainant contends that her civil action was solely based on her claim of retaliation and she did not seek relief on her claim of sexual harassment. She writes that the sexual harassment allegations in the civil action were provided as background information. Complainant asks that her administrative complaint be remanded to the Agency for further processing on her request for compensatory damages on her sexual harassment claim.
On appeal the Agency observes that Complainant concedes that she filed a civil action on her reprisal claim. It requests that the Commission uphold its dismissal of Complainant's retaliation claim. The Agency writes that since it found in favor of Complainant on her sexual harassment claim it must adjudicate the issue of damages. The Agency asks that the Commission remand Complainant's request for compensatory damages for sexual harassment to the Agency for a determination on compensatory damages.
ANALYSIS AND FINDINGS
As a legal and practical matter the April 2, 2012, FAD dismissing Complainant's administrative complaint only applied to Complainant's sexual harassment claims, not her reprisal claims. The Agency previously found no discrimination on the reprisal claims in its July 26, 2011, FAD, and Complainant did not file an appeal with the Commission. For these reasons the reprisal claims in the administrative EEO complaint were already closed by the time the April 2, 2012, FAD was made.
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).
On appeal, both the Complainant and the Agency request that the Commission remand the matter of compensatory damages on Complainant's sexual harassment claim to the Agency for a determination on compensatory damages. The Agency, in essence, now concedes that the civil action does not include Complainant's sexual harassment claim.
While we agree with the parties on this matter, we caution that the civil action complaint was loosely pleaded in places. For example in the count section Complainant incorporated all of her allegations and alleged that the Agency retaliated against her by subjecting her to a hostile work environment. While we agree with the parties that the civil action complaint does not cover Complainant's sexual harassment claim, this would not be the case if the reprisal matter were amended or interpreted to include the same actions covered by the sexual harassment claim. We caution Complainant that to the extent this occurs, her administrative complaint would be subject to dismissal again by the Agency.
CONCLUSION
The FAD is REVERSED.1
ORDER
The Agency is ordered to process Complainant's claim for compensatory damages arising from its finding in the July 26, 2011, FAD that Complainant was sexually harassed. Specifically, the Agency shall complete the supplemental investigation on compensatory damages if it has not already done so and issue a decision on compensatory damages within 60 calendar days after this decision becomes final.
The Agency shall submit a report of compliance with evidence that it has complied with this order to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
October 10, 2012
__________________
Date
1 As previously stated Complainant's reprisal claim in her administrative complaint is closed.
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0120122158
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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