0120091779_0120091780
03-24-2011
Josephina R. Estrada, Sandra D. Vaillancourt, Complainants, v. John M. McHugh, Secretary, Department of the Army, Agency.
Josephina R. Estrada,
Sandra D. Vaillancourt,
Complainants,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal Nos. 0120091779, 0120091780
Hearing Nos. 451-2008-00257X, 451-2008-00258X
Agency Nos. ARWSMR08JAN00225, ARWSMR08JAN00239
DISMISSAL OF APPEALS
On March 11, 2009, Complainants Estrada and Vaillancourt filed appeals
from the Agency's February 2009 final action denying class certification
of their equal employment opportunity (EEO) complaint alleging employment
discrimination. According to EEOC Regulation 29 C.F.R. � 1614.409, the
Commission DISMISSES their appeals because Complainant Estrada filed a
civil action involving an act of alleged discrimination that is identical
to the one at issue in her individual EEO complaint.
ISSUE PRESENTED
Whether the issues in the Complainants' EEO complaint and the civil
action are the same, that is, whether the acts of alleged discrimination
are identical.
BACKGROUND
At the time of events giving rise to her individual EEO complaint,
Complainant Estrada worked as a Supervisory Electronic Engineer at the
Agency's White Sands Missile Range Test Center in New Mexico. On March 6,
2008, she filed an individual EEO complaint (Agency No. ARWSMR08JAN00225),
alleging that the Agency discriminated against her on the bases of
national origin/race (Hispanic), sex (female), and reprisal for prior
protected EEO activity under Title VII of the Civil Rights Act of 1964
when, on December 10, 2007, she became aware that the Agency had not
selected her for the Supervisory, Information Technology Specialist,
GS-2210-14, position in the Directorate of Data Sciences at White Sands
Missile Range in New Mexico.
On March 10, 2008, Complainant Vaillancourt filed an individual EEO
complaint (Agency No. ARWSMR08JAN00239). The Agency accepted for
investigation the allegations that (1) she was discriminated against on
the bases of age, sex (female) and physical disability when the Agency did
not afford her the opportunity to compete for the Administrative Support
Specialist, GS-0301-09) position in the Directorate of Data Sciences;
and (2) she was subjected to a hostile work environment on the basis of
physical disability regarding events in June and October 2006.
After the Agency completed its investigations, the Complainants both
requested hearings before EEOC Administrative Judges (AJs). In October
and November 2008, Complainants' attorney requested that their individual
complaints be processed as a class complaint, with the class apparently
consisting of female employees at White Sands Missile Range who had not
been promoted by the Agency.
On January 15, 2009, the AJ issued a decision denying class certification
because the class complaint did not meet the numerosity, commonality, and
typicality prerequisites for class certification. Because the Agency had
already completed its investigations of the individual EEO complaints,
the AJ gave Complainants the option of re-filing their requests for
hearings before an administrative judge. And following resubmission of
the hearing requests, the AJs would process the complaints separately
as individual complaints and assign them new EEOC case numbers.
The Agency issued its final action in February 2009, adopting the AJ's
decision denying class certification. Complainants each filed an appeal,
while referencing the other.
On or around February 1, 2011, the Agency requested that the
Commission dismiss the appeal filed by Complainant Estrada (EEOC Appeal
No. 0120091779) because it is now the basis of a civil action that was
filed by her in a United States District Court. The Agency attached a
copy of the civil action complaint.
CONTENTION ON APPEAL
On appeal, Complainants contend that the AJ erred in finding that the
class complaint did not meet the prerequisites for class certification.
ANALYSIS AND FINDINGS
EEOC Regulation 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 an 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 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.,
EEOC Request No. 05880114 (October 25, 1988).
The proper inquiry to determine whether dismissal is warranted based on
the filing of a civil action is "whether the issues in the EEO complaint
and the civil action are the same, that is, whether the acts of alleged
discrimination are identical." Everett v. Dep't of the Army, EEOC Request
No. 05930234 (Aug. 5, 1993) (citing Bellow v. U.S. Postal Serv., EEOC
Request No. 05980913 (Nov. 27, 1989). The crux of the legal analysis
consists of the factual allegations, rather than the bases alleged or
the precise relief requested. See Jackson v. Dep't of the Air Force,
EEOC Request No. 05940414 (Sept. 1, 1994); Perry v. U.S. Postal Serv.,
EEOC Appeal No. 01932403 (June 23, 1993). Where a civil action does
not identify specific acts, a comparison of the cause of action and
the time frame listed in the civil action with the allegations and time
frame in the EEO complaint may be sufficient to warrant dismissal on the
basis of the filing of the civil action. Shapiro v. Dep't of the Army,
EEOC Request No. 05950740 (Oct. 10, 1996); Jackson v. Dep't of the Air
Force, EEOC Request No. 05940414 (Sept. 1, 1994) (finding that a fair
reading of the language of the complainant's civil action was so "broad
and all-inclusive" that it completely overlapped the complainant's EEO
complaint allegations).
The civil action indicates that on June 18, 2010, Complainant Estrada
and Teresa Anaya filed a civil action in the United States District Court
of New Mexico (Josephina R. Estrada and Teresa M. Anaya v. John McHugh,
Secretary, Department of the Army, Civil Action No. 2:10-cv-00592-JCH-GBW
(D. N.M.)). The civil action alleges that Estrada was subjected
to discrimination on the basis of gender and retaliation when, in
July 2006, she was not selected for promotion to a GS-14 Supervisory
Information Technology Specialist position. The civil action also
alleges that Estrada was subjected to other acts of discrimination,
such as receiving a lower annual performance award on an unspecified
date, and not being selected for the Multiple Disciplinary position,
YF-1310-03, at the White Sands Missile Range. The civil action alleges
that Anaya, who also submitted a December 2, 2008 declaration alleging
gender discrimination in support of the Complainants class complaint,1
was discriminated against on the basis of gender and reprisal when: (1)
on August 6, 2009, she was involuntarily reassigned; (2) on January 29,
2009, she received a lower appraisal rating.
In an amended complaint filed in the civil action, Complainant Estrada
and Teresa Anaya, on June 21, 2010, maintained that:
[A]t WSMR female engineers are not given the same tools as their male
counterparts, their work is not given the same level and grade as their
male counter parts, they are not given the same opportunities as their
male counterparts to be promoted and/or opportunity for developmental
details. The deprivation of such benefits to female engineers is then
used by WSMR as a continued basis to not promote the female engineers.
We find that the civil action's reference to Estrada's nonselection
for a GS-14 position of Supervisory Information Technology Specialist
at White Sands Missile Range and other language contained therein and
in the amended complaint are broad and inclusive enough to encompass
the EEO class complaint allegation that she was not selected for the
Supervisory, Information Technology Specialist, GS-2210-14, position
in the Directorate of Data Sciences at White Sands Missile Range.
We also find that the civil action includes the same acts of alleged
discrimination as specified in Estrada's individual EEO complaint.
Accordingly, we dismiss EEOC appeal numbers 0120091779 and 0120091780,
pursuant to 29 C.F.R. � 1614.409.
CONCLUSION
The Commission DISMISSES the appeals of Complainants Estrada and
Vaillancourt seeking class certification because Estrada filed a civil
action that included an act of alleged discrimination that is identical
to the one at issue in her individual EEO complaint.
COMPLAINANTS' STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in
this case if the Complainants 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).
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 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
____3/24/11______________
Date
1 According to Complainants' attorney, her declaration "[S]hows that
since 1995, she has fought gender discrimination at WSMR. Ms. Anaya
was in a meeting wherein a Commanding General at WSMR, McCabe, made
an observation that 'women had fewer accidents, because they had men
do the work for them.' Ms. Anaya has had supervisors state openly that
they would not call on one of those "gals." Ms. Anaya outlines numerous
incidents regarding promotions, details, and merits, where as a female
she was treated differently as were male counterparts."
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0120091779
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120091779, 0120091780