0120092524
08-12-2011
Marcia A. Lurensky, Complainant, v. Jon Wellinghoff, Chairman, Federal Energy Regulatory Commission, Agency.
Marcia A. Lurensky,
Complainant,
v.
Jon Wellinghoff,
Chairman,
Federal Energy Regulatory Commission,
Agency.
Appeal No. 0120092524
Hearing No. 570-2006-00376X
DECISION
Complainant filed an appeal with this Commission from the Agency's final action dated June 2, 2009, dismissing her complaints 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Attorney Advisor, GS-15, at the Agency's Office of General Counsel in Washington, D.C.
Complainant previously filed an EEO Complaint in 2003 alleging that she was discriminated against on the bases of sex (female), religion (Jewish), disability (stroke, cardiomyopathy, and psoriasis) and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
(1) In the fall of 2003, Complainant's request for compensatory religious leave was not accommodated;
(2) Complainant's requests for assignment to a position outside of the Office of Energy Projects in the Office of General Counsel were denied;
(3) In July 2003 and July 2004, Complainant received "Fully Satisfactory" annual performance ratings for the periods October 6, 2002, through June 30, 2003, and July 1, 2003, through June 30, 2004;
(4) Beginning on June 18, 2003, and thereafter, Complainant was subjected to a hostile work environment;
(5) Documents from Complainant's government computer were retrieved by a nonprofit Maryland association whose purpose is crime prevention; and
(6) The Agency improperly retrieved and reviewed material from Complainant's government computer.
Complainant's complaint proceeded to a hearing before an EEOC Administrative Judge (AJ). The AJ found Complainant failed to prove that she was subjected to discrimination as alleged and the Agency issued a final order fully implementing the AJ's decision. Complainant filed an appeal of the Agency's final order. Complainant's appeal was denied in EEOC Appeal No. 0120061084 (February 15, 2008). Complainant requested reconsideration of the Commission's decision which was denied in EEOC Request No. 0520080374 (April 16, 2008).
Complainant filed a second formal complaint dated May 31, 2005, alleging that the Agency subjected her to discrimination and harassment on the bases of disability (cardiomyopathy, congestive heart failure, stroke, and disabling psoriasis) and in reprisal for prior protected EEO activity when she was advised that she would not be advanced any annual leave and that advanced annual leave could not be used for medical purposes.
On July 29, 2005, the Agency accepted the second complaint and identified the following issues for processing:
(1) Whether Complainant was discriminated against based on her disability (cardiomyopathy, congestive heart failure, stroke, and disabling psoriasis) when in April 2005, she was advised by her immediate chain of command of a decision by the Office of the Executive Director that she would not be advanced any annual leave and that advanced annual leave could not be used for medical purposes.
(2) Whether Complainant was retaliated against when in April 2005, she was advised by her immediate chain of command of a decision by the Office of the Executive Director that she would not be advanced any annual leave and that advanced annual leave could not be used for medical purposes.
(3) Whether Complainant was subjected to a hostile work environment in April 2005, when she was advised by her immediate chain of command of a decision by the Office of the Executive Director that she would not be advanced any annual leave and that advanced annual leave could not be used for medical purposes.
Thereafter, Complainant filed a third complaint dated September 13, 2005, alleging discrimination and harassment based on disability (cardiomyopathy, congestive heart failure, stroke, arthritis, disabling psoriasis, orthopedic conditions, and other chronic conditions) and in reprisal for prior protected EEO activity when:
(1) The Agency allegedly put Complainant on a "de facto" leave restriction by refusing to grant her advanced leave for other than medical conditions;
(2) Complainant was allegedly denied the opportunity to work from home and/or the Agency failed to timely respond to Complainant's request to work at home as an accommodation in July and August 2005;
(3) The Agency failed and/or refused to grant Complainant advanced leave for absences arising from or relating to her need to be at home for rest or care because of her disabilities or other medical needs and/or non-medical needs; and
(4) In August 2005, Complainant received a [fully successful] performance evaluation that was not reflective of the quality of work performed.
The Agency accepted issues (1) - (3) in her third complaint for processing. The Agency dismissed issue (4) under 29 C.F.R. � 1614.107(a)(2), on the grounds this issue was not previously brought to the attention of an EEO Counselor and was not like or related to a matter that had been brought to the attention of a counselor.
The Agency consolidated the second and third complaints for processing. Complainant requested a hearing on the consolidated complaints and her complaints were assigned to an AJ. On October 16, 2009, the AJ issued an order approving the exclusion of issue (4) of the third complaint from the case.
On April 20, 2009, the AJ dismissed Complainant's consolidated second and third complaints pursuant to 29 C.F.R. � 1614.107(a)(3), and returned them to the Agency to be consolidated with the pending civil action filed by Complainant. The Agency issued its final action on June 3, 2009, fully implementing the AJ's decision.
On appeal, Complainant argues that her case pending before the U.S. District Court is not based on the second and third consolidated complaints. Complainant states that the complaint before the U.S. District Court pre-dates the subject complaints before the EEOC; however, she states that the Agency's animus and targeted retaliatory' discrimination has been ongoing and evidences the Agency's pattern practice and course of retaliatory conduct.
Additionally, Complainant argues the Agency improperly dismissed issue (4) of her third Complaint. Specifically, Complainant argues that she timely sought EEO counseling and communicated with an Agency EEO counselor regarding her 2005 performance appraisal.
Complainant also claims that the Agency's July 29, 2005 statement of the issues contained in her second complaint do not correctly identify the issues in her complaint. She states that the issues in her second complaint should be defined as:
(1) Whether the Agency discriminated against Complainant on the basis of disability (Cardiomyopathy, Congestive heart failure, Stroke, Arthritis, and Disabling Psoriasis) when Complainant was denied advanced annual leave, advised that advanced annual leave could not be used for medical purposes, instructed that accumulated annual leave could not be used for medical purposes, not granted advanced sick leave, and denied accommodation.
(2) Whether the Agency retaliated against Complainant for her engaging in protected activity by denying her advanced annual leave, in instructing her that advanced annual leave cannot be used for medical purposes, in instructing her that accumulated annual leave cannot be used for medical purposes, by failing to advance sick leave, and in denying accommodation.
(3) Whether the Agency's denial of Complainant's request for advanced annual leave, the instruction that advanced annual leave could not be used for medical purposes, the instruction that accumulated annual leave could not be used for medical purposes, failure to grant her request for advanced sick leave, and denial of accommodation evidence the hostile work environment to which complainant is subjected are further evidence of the retaliatory, discriminatory, hostile work environment to which the Complainant is subjected.
Finally, Complainant argues that the Agency improperly denied her request to consolidate her February and May 2006 complaints (fourth and fifth complaints) with the subject consolidated second and third complaints. On appeal, Complainant requests consolidation of her second and third complaints with these two subsequently filed complaints.
In response to Complainant's appeal, the Agency argues the AJ properly dismissed Complainant's second and third complaints pursuant to 29 C.F.R. � 1614.107(a)(3). Specifically, the Agency notes that Complainant alleges the same claims of discrimination in her second and third complaint as she alleges in the United States District Court and her claims are based on alleged identical treatment by her supervisors in the Office of General Counsel. The Agency also states that its characterization of Complainant's allegations in her second complaint was proper. Third, the Agency argues the AJ's dismissal of issue (4) in her third complaint should be upheld given that Complainant failed to timely submit evidence that she had appropriately contacted an EEO counselor. Finally, the Agency argues that the issue of whether to consolidate Complainant's fourth and fifth complaints with her second and third complaints is now moot. Alternatively, the Agency states that the fourth and fifth complaints should not be consolidated with the instant matter because the issues raised in those complaints are not sufficiently like or related to the matters now pending.
ANALYSIS AND FINDINGS
At the outset, we address Complainant's contentions that the Agency improperly defined the issues listed in her second complaint. Upon review, we find the Agency properly defined the issues accepted in her second complaint in its July 29, 2005 letter and we find the Agency's definition of the issues does not differ materially from Complainant's definition of the issues.
The record reflects that on July 14, 2008, Complainant filed a civil action in the United States District Court for the District of Columbia, which was amended on May 14, 2009. The record further discloses that the claims raised therein are the same as those raised in the instant complaint, including issue (4) raised in Complainant's third complaint. The regulation found at 29 C.F.R. � 1614.107(a)(3) provides that a formal complaint shall be dismissed if it is also the basis of a pending civil action in a United States District Court. Commission regulations mandate dismissal of the EEO complaint under those 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 Service, EEOC Request No. 05880114 (October 25, 1998).
Based on our conclusion that issue (4) in Complainant's third complaint was raised in her July 14, 2008 civil action, as amended on May 14, 2009, we do not address whether the Agency properly dismissed issue (4) pursuant to 29 C.F.R. � 1614.102(a)(2). Moreover, we find Complainant's motion to consolidate her fourth and fifth complaints with the subject second and third complaints is moot based on our decision that the second and third complaints were properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(3).
CONCLUSION
Accordingly, the Agency's final action is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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).
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 (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
8/12/11
__________________
Date
2
01-2009-2524
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120092524