Karren N.,1 Complainant,v.Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Mar 24, 2017

0120150147 (E.E.O.C. Mar. 24, 2017)

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

Karren N.,1
Complainant,

v.

Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120150147

Hearing No. 510-2014-00074X

Agency No. 200I-0317-2012103413

DISMISSAL OF APPEAL

Complainant filed an appeal with this Commission concerning her equal employment
opportunity (EEO) 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. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et
seq.

On September 18, 2012 (and later amended), Complainant filed a formal complaint alleging
that the Agency discriminated against her, subjected her to a hostile work environment, and
denied her reasonable accommodation based on her disability and in reprisal for prior protected
EEO activity. Following an investigation, Complainant requested a hearing before an Equal
Employment Opportunity Commission Administrative Judge. On February 21, 2014, the AJ
assigned to the matter (AJ-1) dismissed Complainant’s hearing request without prejudice based
upon her inability to proceed due to complications she experienced from her medical condition.
AJ-1 ordered the Agency to hold the complaint in abeyance and to allow Complainant until
April 27, 2014 to renew her hearing request, after which the Agency was to issue a final
Agency decision.

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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On August 20, 2014, Complainant and five other employees filed a class complaint (Agency
No. 200I-0317-2014102011). Complainant was not the agent for the class. On September 17,
2014, Complainant was notified that her individual complaints (Agency Nos. 200I-0317-
2012103413 and 200I-0317-2014102766) would be held in abeyance until a decision was made
by the AJ assigned to the matter (AJ-2) regarding the class certification. On January 21, 2015,
AJ-2 dismissed the request for class certification. On March 4, 2015, the Agency issued a
final order fully implementing AJ-2’s decision. The Agency failed, however, to state in the
final order that it would continue processing the individual complaints.

Complainant filed the instant appeal on October 3, 2014, prior to receiving AJ-2’s dismissal of
the class certification and the Agency’s final order. Complainant specifically requested in her
appeal that the Agency proceed with the processing of her two individual complaints.2
Complainant did not challenge the denial of class certification.

In response, the Agency acknowledged that it failed to notify Complainant that it would resume
processing her individual complaint following its acceptance of AJ-2’s denial of class
certification. The Agency submitted a signed statement from its Regional EEO Officer
declaring that the Agency has resumed processing the individual complaints previously held in
abeyance. Further, Commission records indicate that Complainant’s complaint is currently
pending a hearing with the Miami District Office (Hearing No. 510-2016-00398X). As such,
the Commission finds that dismissal of the instant appeal is appropriate as it has currently been
rendered premature by the resumption of the hearing process.

The instant appeal is DISMISSED without prejudice. Complainant may file a new appeal if
she wishes following the AJ’s decision in this matter and the issuance of the Agency's final
order on that decision.

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:

2 On March 30, 2015, Complainant filed an appeal with the Commission regarding Agency
No. 200I-0317-2014102766. Therein, Complainant requested that the Agency begin
processing her complaint. In Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No.
0120151606 (July 2, 2015), the Commission dismissed the appeal as premature (as it will do so
in this decision as well) noting that the Agency had presented evidence indicating that it had
resumed processing the individual complaints that were initially held in abeyance.
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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
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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

March 24, 2017
Date