Leonardo M.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Nov 4, 2020

2020000190 (E.E.O.C. Nov. 4, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Leonardo M.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020000190 Hearing No. 410-2017-00255X Agency No. 200I-0010-2016102195 DISMISSAL OF APPEAL On October 1, 2019, the Equal Employment Opportunity Commission (EEOC or Commission) received Complainant’s appeal via un-postmarked envelope from a final Agency action dated August 27, 2019, implementing the decision of a Commission Administrative Judge’s (AJ) decision finding no discrimination regarding 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., and 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 an Emergency Management Specialist, GS-0089-13 at the Office of Emergency Management in Duluth, Georgia. He is now retired. On May 31, 2016, Complainant filed an equal employment opportunity (EEO) complainant alleging he was subjected to a hostile work environment based on his sex, age (59 - 65) and reprisal for prior protected EEO activity when: 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. 2020000190 2 1) On August 14, 2012, his first line supervisor (S1) placed him on a Performance Improvement Plan (PIP); 2) On October 5, 2015, S1 cancelled his telework schedule; 3) On October 7, 2015, S1 denied him representation during a meeting to discuss a proposed suspension; 4) On October 15, 2015, when he responded to an email about Ebola, S1 stood within three feet of his personal space and in an unwelcome tone emphasized S1 was the Senior Emergency Management Official; 5) On October 26, 2015, S1 issued him a 7-day suspension, effective November 8-14, 2015; 6) On November 19, 2014, 1 S1 issued him a reprimand; 7) On December 2, 2015, S1 instructed him to place his personal information on S1’s work calendar; 8) As of February 16, 2016, he had not received a response to the administrative grievance he filed on November 25, 2015; 9) On August 29, 2016, S1 issued him a proposed 14-day suspension; 10) On September 9, 2016, S1 delayed approval of his travel orders; 11) On September 20, 2016, he received a 14-day suspension, effective September 25, 2016 to October 8, 2016 - which was also disparate treatment; 12) On November 29, 2017, S1 issued him Fiscal Year 2017 performance rating of fully successful that included derogatory comments regarding his performance in the justification section of the rating form; 13) On January 16, 2018, S1 denied his request for 90 minutes of compensatory time; 14) On May 24, 2018, S1 emailed him, and in a group forum, falsely accused him of wrongfully calendaring his leave, when, in fact, he had properly calendared his leave; and 15) On July 2, 2018, S1 emailed him an extensive list of questions whose answers could take a day or more to prepare and expected him to answer them in a meeting scheduled to occur 40 minutes later. 2020000190 3 Following an investigation, Complainant requested a hearing before an AJ with the EEOC. By summary judgment without a hearing, the AJ found no discrimination. Thereafter, the Agency issued a final order fully implementing the AJ’s decision. The instant appeal followed. While his appeal was pending, Complainant on March 9, 2020, filed a civil action (identified as Civil Action No. 1:20-cv-01081), as amended on September 11, 2020, in the United States District Court for the Northern District of Georgia.2 Therein, he alleged a hostile work environment based on his age, sex and reprisal for protected EEO activity when he was subjected to a hostile work environment, and listed incidents 1 - 11. He attached the Commission AJ’s decision and the Agency’s final order to his civil action, as amended. Based on the above, we find the claims raised in the civil action complaint, as amended are the same as those raised in the instant administrative complaint. The regulation found at 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 the EEO complaint under these circumstances so as 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 (October 19, 1989); Kotwitz v. U.S. Postal Serv., EEOC Request No. 05880114 (October 25, 1988). Accordingly, Complainant’s appeal is hereby DISMISSED. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the complainant or the agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). 2 We take administrative notice that as of October 28, 2020, the civil action is still pending. 2020000190 4 Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2020000190 5 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 4, 2020 Date