Complainant,v.Jacob J. Lew, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity Commission

Mar 19, 2015

0120150652 (E.E.O.C. Mar. 19, 2015)

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

,
Complainant,

v.

Jacob J. Lew,
Secretary,
Department of the Treasury,
Agency.

Appeal No. 0120150652

Hearing No. 570-2011-00772X

Agency No. IRS-10-0655-F

DECISION
Complainant filed an appeal with this Commission from the Agency's final order dated
December 11, 2014, 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. For the following reasons, the Commission AFFIRMS the Agency’s
final order.

On October 31, 2010, Complainant filed a formal complaint under Agency No. IRS-10-0655-
F, which was subsequently amended, alleging that the Agency subjected her to discrimination
and a hostile work environment on the bases of age and in reprisal for prior protected EEO
activity when:

1. On June 29, 2010, Complainant received an unacceptable rating on her annual
performance appraisal;
2. On February 22, 2011, Complainant was denied training;
3. On March 10, 2011, management notified Complainant that her workload would
be increased (on March 14, 2011) without any additional training;
4. On March 8, 2011, Complainant's manager violated her privacy during a
conference call regarding her performance appraisal; and
5. Management notified Complainant, that, effective April 11, 2011, she could no
longer work an Alternate Work Schedule (AWS).

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At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing.

On October 15, 2014, the AJ issued a Notice of Final Dismissal Based on Filing in District
Court. The AJ noted that in September 2014, Complainant filed a complaint in the United
States District Court. The AJ noted that in her District Court complaint, Complainant made
allegations of employment discrimination and “ongoing” harassment. As a result, the AJ
found Complainant placed Agency No. IRS-10-0655-F within the purview of the District
Court. Thus, the AJ dismissed Complainant’s complaint with prejudice.

On December 11, 2014, the Agency issued a final order fully implementing the AJ’s decision.

On appeal, Complainant claims that her civil action concerned only Agency Nos. IRS-11-0796-
F and IRS-08-904-F. Complainant states she did not file a civil action on Agency No. IRS-10-
0655-F. Complainant states that each of her three complaints concern different issues and
covers a different period of time.

In response to Complainant’s appeal, the Agency argues the AJ properly concluded that
Complainant’s District Court filing made broad allegations of employment discrimination and
harassment which placed Agency No. IRS-10-0655-F within the jurisdiction of the District
Court. The Agency notes that all of Complainant’s allegations in her District Court complaint
essentially involved the general assertion that Complainant’s managers created a pattern and
practice of a discriminatory hostile work environment.

The record reveals that on August 21, 2014, Complainant filed a complaint, which was
subsequently amended on August 26, 2014, under Civil Action No. 8:14-cv-02701-TDC in the
United States District Court for the District of Maryland. In her district court complaint,
Complainant stated she was appealing two of her EEO complaints under Agency Nos. IRS-11-
0796-F and IRS-08-904-F and also requested “remedial relief of (ongoing) harassment.”
(parenthesis original). We find the claims raised in the August 2014 civil action are the same
as those raised in the present complaint. Despite her argument to the contrary, we find that
due to the broad nature of Complainant’s claims in her civil action, the harassment alleged in
IRS-10-0655-F falls within the purview of her August 2014 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, 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).
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Accordingly, the Agency’s final order dismissing Complainant’s complaint is AFFIRMED.

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.

0120150652

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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

Date
March 19, 2015