Emerson P.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJul 20, 2016
0120141536 (E.E.O.C. Jul. 20, 2016)

0120141536

07-20-2016

Emerson P.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Emerson P.,1

Complainant,

v.

Robert McDonald,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120141536

Hearing No. 470-2014-00002X

Agency No. 200J06102012101697

DECISION

On March 7, 2014, Complainant filed an appeal with this Commission from the Agency's final order dated January 29, 2014, implementing the dismissal his 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. For the following reasons, the Commission AFFIRMS the Agency's final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisory Medical Engineer at the Agency's Northern Indiana Health Care System facility in Marion, Indiana. On May 21, 2012, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of national origin (Greek and Arab), and religion (Muslim) when he was subjected to harassment; and a constructive discharge when he resigned from his position on February 10, 2012.

Complainant requested a hearing before an EEOC Administrative Judge (AJ) for his non-mixed case harassment allegation, and a final agency decision (FAD) for his constructive discharge claim. On September 10, 2013, the Agency issued the FAD finding that Complainant was discriminated against when he was constructively discharged based on discriminatory harassment. The Agency found that Complainant's managers failed to stop the discriminatory harassment for over a year.

Complainant received the FAD on November 7, 2013, and filed a civil action on November 15, 2013. On December 2, 3013, the Agency filed a Motion to Dismiss Complainant's case before the EEOC AJ because he had filed a civil action, which included a discriminatory claim of a hostile work environment. The AJ issued an Order of Dismissal on January 13, 2014, and the Agency issued its final order to dismiss Complainant's case on January 29, 2014. Complainant then filed the instant appeal.

CONTENTIONS ON APPEAL

On appeal, Complainant is requesting that the dismissal be reversed, or in the alternative, modify the dismissal to be without prejudice.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. � 1614.107(a)(3), an Agency may dismiss a complaint that is the basis of a civil suit in a United States District Court in which the Complainant is a party. The record supports the Agency's assertion that Complainant filed a civil action in the United States District Court for the Central District of California (identified as Civil No. CV13-8474SS), that included claims of discrimination based on national origin, and religion when the Agency subjected Complainant to a hostile work environment and a constructive discharge. We therefore find that Complainant's hostile work environment claim was properly dismissed.

CONCLUSION

The Agency's final order implementing the AJ's decision dismissing Complainant's complaint alleging discrimination based on national origin, and religion when he was subjected to a hostile work environment is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0416)

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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court

has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden's signature

Carlton M. Hadden, Director

Office of Federal Operations

_7/20/16_________________

Date

1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.

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