0120170096
11-03-2017
Hester S.,1 Complainant, v. Scott Pruitt, Administrator, Environmental Protection Agency, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Hester S.,1
Complainant,
v.
Scott Pruitt,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 0120170096
Hearing No. 570-2014-01108X
Agency No. 2013-0110-HQ
DECISION
On October 3, 2017, Complainant filed a timely appeal from the Agency's final Order dated August 31, 2016, implementing the decision of an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ) that procedurally dismissed 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed with the Agency as the Deputy Division Director of the Risk Assessment Division, GS-401-15 inside the Office of Pollution Prevention and Toxics in Washington, DC.
On January 21, 2014, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency discriminated against her based on her age (59) when on September 9, 2013, she was advised that she would be reassigned to the non-supervisory position of Senior Science Advisor, GS-401-15 in the Risk Assessment Division.
Following an investigation, Complainant, in July 2014, requested a hearing before an EEOC AJ. We take administrative notice of the following. Effective December 27, 2014, Complainant retired under the Agency's Voluntary Separation Incentive Program. While her request for an EEOC hearing was pending, on October 12, 2015, Complainant filed an appeal with the Merit Systems Protection Board (MSPB) alleging that she was discriminated against based on her age when she was constructively demoted,2 referring to the same reassignment in her EEO complaint, as well as when she involuntarily retired. Initial Decision of the MSPB at 2016 WL 3988758 (July 22, 2016), petition for review denied by the Board, at 2016 WL 7451377 (Dec. 28, 2016). The MSPB observed that Complainant untimely filed her appeal, but asserted she was not informed of her appeal rights. Noting that it was dismissing Complainant's entire appeal for lack of jurisdiction, the MSPB did not further address timeliness. The MSPB found that it did not have jurisdiction over Complainant's constructive demotion and involuntary retirement claims because the actions did not meet its criteria for being a constructive demotion and involuntary retirement.
Meanwhile, while both Complainant's EEO complaint and appeal to the MSPB on the same reassignment matter were pending, respectively, before the EEOC AJ and the MSPB, Complainant filed a civil action on April 21, 2016, alleging that the same reassignment violated the ADEA (as well as her constructive discharge and the hostile work environment causing the constructive demotion and constructive discharge). The civil action was filed in the United States District Court for the District of Columbia - Civil Action No. 1:16-cv-00748.
Thereafter, on August 19, 2016, citing Commission regulations and case precedent, the EEOC AJ dismissed Complainant's complaint for being the subject of a pending civil action, and the Agency implemented this decision in its August 31, 2016 final order. Complainant then filed the instant appeal.
We take administrative notice that on March 30, 2017, the Court dismissed Complainant's reassignment/constructive demotion and constructive discharge claims for failure to exhaust administrative remedies because she filed her appeal with the MSPB 694 days after her reassignment and 289 days after her retirement, long past the 30-day time limits to do so. The Court was unaware of the MSPB's decisions.
In the same ruling, the Court also found that Complainant exhausted her administrative remedies on her hostile work environment claim. The Court ruled that exhaustion of administrative claims includes those that are like or reasonably related to allegations of the charge growing out of such allegations in her administrative EEO complaint. It found that Complainant's allegation of reassignment/constructive discharge in her administrative EEO complaint was reasonably related to her hostile work environment claim in her civil action complaint, e.g., removal of job duties, reassignment from an office to an open cubicle, feelings of humiliation, and pressure to retire. Accordingly, the Court allowed Complainant's hostile work environment claim to go forward.3
Complainant's argument on appeal, and the Agency's opposition thereto, were filed prior to the Court's partial dismissal, and hence do not address this development.
ANALYSIS AND FINDINGS
Filing a civil action in a United States District Court on the same matter as an administrative complaint terminates the processing of the administrative complaint. 29 C.F.R. � 1614.107 and .409.
In Patel v. Department of Veterans Affairs, EEOC Request No. 05920346 (May 12, 1992), the Commission reversed a FAD which dismissed a portion of an administrative complaint because the complainant filed a civil action on the same matter. The Commission noted that the court granted the agency's motion to dismiss the civil action because the complainant failed to exhaust his administrative remedies by not waiting to file his civil action 180 calendar days after filing his administrative complaint. The Commission found that because the Court did not reach the merits of the case, there was no possibility of conflicting decisions, and to deny processing in the administrative forum would deny the complainant any forum for his complaint. But since the Court found that Complainant exhausted her administrative remedies on her hostile work environment claim, we find Patel does not apply here.
Commission regulations mandate dismissal of the EEO complaint under these circumstances 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 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).
Here, Complainant's civil action hostile work environment claim and administrative EEO complaint reassignment/constructive demotion claim shares a common core of facts. This creates the potential for inconsistent or conflicting decisions. Complainant's constructive demotion claim arises from her claim of a hostile work environment, and vice versa. Further, the same remedies are available in the administrative and Court forums.
Accordingly, the FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
November 3, 2017
__________________
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.
2 The MSPB found the reassignment was effective November 17, 2013.
3 The Court's electronic docket shows that of November 2, 2017, the civil action is still pending.
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