Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jul 22, 2015

01-2013-0814-0500 (E.E.O.C. Jul. 22, 2015)

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

,
Complainant,

v.

Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120130814

Hearing No. 470-2011-00204X

Agency No. 200J-0583-2010105005

DISMISSAL OF APPEAL
Complainant filed an appeal with this Commission from the June 15, 2012 final Agency action
implementing the EEOC Administrative Judge’s (AJ) decision finding no discrimination with
regard to 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 the Agency’s Richard L. Roudebush Medical Center in Hines, Illinois. On
January 5, 2011, Complainant filed a formal complaint alleging that the Agency subjected her
to discrimination on the bases of race (African-American) and color (Black) when she was
harassed by her co-workers and management on numerous occasions. 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 Equal Employment Opportunity Commission
Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing
on January 10 and 11, 2012, and issued a decision on May 3, 2012.

In the decision, the AJ concluded that Complainant was discriminated against based on her
color when, between November 2008 through December 2010, she was subjected to a hostile
work environment. The record revealed that Complainant endured frequent, severe
humiliation, intimidation and interference with her work by a co-worker. In addition, the
record evidence showed Complainant was propositioned, referred to as a chocolate teddy bear,
black bitch, and subjected to other offensive language and conduct. To remedy the
discrimination suffered, the AJ ordered the Agency to pay Complainant $30,000.00 in non-
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pecuniary compensatory damages, pay for any counseling over the next two years that
Complainant requests for emotional distress related to the hostile work environment, provide
training for the responsible management officials regarding the responsibility to provide
employees a work environment free of discriminatory intimidation and hostility, expunge any
references to this complaint and the reasons for its initiation from Complainant’s personnel
records, and to post a notice. In addition, the AJ awarded Complainant $11,725.00 in
attorney’s fees and $58.81 in costs.

On June 15, 2012, the Agency issued a final order fully implementing the AJ’s decision. In its
final order, the Agency additionally awarded Complainant restoration of all leave (annual,
sick, or leave without pay) taken as a result of the discriminatory incidents. Complainant was
required to assist management by providing information reasonably requested to implement the
relief ordered.

In July and August 2012, Complainant and her attorney began corresponding with the Agency
to assist in calculating the proper amount of leave to be restored. Complainant was not
satisfied with the Agency’s efforts to restore her leave, and on August 21, 2012, Complainant
filed a civil action (identified as Civil Action No. 1:12-CV-1193SEB-DML) in the United
States District Court for the Southern District of Indiana regarding this issue. On December
19, 2012, Complainant filed an appeal with the Commission with respect to this leave
restoration dispute.1

The Commission notes that 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 (Oct. 19, 1989); Kotwitz v. U.S. Postal
Serv.

1 The record indicates that Complainant attempted to file an appeal with the Commission on
November 28, 2012; however, despite being provided the correct mailing instructions within
her appeal rights in the Agency’s final order, she mailed her appeal package to an incorrect
address and her package was returned.
, EEOC Request No. 05880114 (Oct. 25, 1988). As Complainant elected to file a civil
action regarding this issue on August 21, 2012, prior to her December 19, 2012 appeal to the
Commission, her appeal is hereby DISMISSED. See 29 C.F.R. § 1614.409.
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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
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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
July 22, 2015