0120150360
06-02-2017
Iris D.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Iris D.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120150360
Agency No. 2004-0558-2009103365
DISMISSAL OF APPEAL
On August 6, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and reprisal for prior protected EEO activity when: (1) in April 2009, she was sexually harassed by her team leader; (2) on May 29, 2009, she was charged absence without leave; (3) on June 22, 2009, she was issued a letter of instruction; and (4) on August 1, 2009, she was terminated from her probationary position of Medical Support Assistant, GS-0670-05.
On July 26, 2011, the Agency issued a final decision (FAD1) finding sexual harassment (claim 1), but no retaliation (claims 2-4). FAD1 remanded Complainant's sexual harassment claim to the Agency for a determination on compensatory damages.
On October 24, 2011, Complainant filed a civil action (identified as Civil Action No. 1:11-cv-00898) in the United States District Court for the Middle District of North Carolina.2
On April 2, 2012, the Agency issued a final decision (FAD2) dismissing Complainant's entire EEO complaint, including her potential entitlement to compensatory damages, for filing a civil action on the same matter.
On April 16, 2009, Complainant filed an appeal with this Commission from FAD2.
On October 10, 2012, the Commission issued a decision in EEOC Appeal No. 0120122158. Regarding Complainant's sexual harassment claim, the Commission found that the matter was not contained in the civil action and remanded the matter to the Agency for a determination on compensatory damages.3 Regarding Complainant's retaliation claim, the Commission found that: (a) in her civil action, Complainant recounted the alleged retaliation and charged the Agency with retaliation; (b) on appeal, Complainant contended that her civil action was based on her retaliation claim; and (c) Complainant's retaliation claim was already closed by the time FAD2 was issued because the Agency found no retaliation in FAD1 and Complainant did not file an appeal with the Commission.
On June 6, 2014, Complainant filed the instant appeal with this Commission regarding her retaliation claim. Among other things, Complainant states that she is "writing [the Commission] in regards to a retaliatory discharge and wrongful termination suit" and requesting reinstatement.
EEOC regulation 29 C.F.R. � 1614.405(a) provides, in pertinent part, that the Commission shall dismiss appeals in accordance with � 1614.107. EEOC regulation 29 C.F.R. � 1614.107(a)(1) provides that a complaint shall be dismissed if it states the same claim that is pending before or has been decided by the agency or Commission.
Here, the record reflects that Complainant is attempting to re-litigate her retaliation claim, which the Commission had decided in EEOC Appeal No. 0120122158 was already closed. Accordingly, Complainant's appeal is hereby DISMISSED. See 29 C.F.R. �� 1614.405(a), 1614.107(a)(1).
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
_6/2/17_________________
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 On March 7, 2013, the parties filed a stipulation of dismissal with prejudice.
3 On December 5, 2012, the Agency issued a final decision (FAD3) awarding Complainant compensatory damages related to her sexual harassment claim.
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