0120131589
09-05-2013
Orlando Sutton, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.
Orlando Sutton,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 0120131589
Agency No. FS-2011-00396
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated February 20, 2012, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
At the time of events giving rise to this complaint, Complainant worked as a District Ranger at the Agency's Francis Marion National Forest in Huger, South Carolina.
On March 11, 2011, Complainant filed a formal complaint. In Sutton v. Department of Agriculture, EEOC Appeal No. 0120113581 (Feb. 23, 2012), the EEOC modified the Agency's dismissal of the complaint. One claim was that the Agency failed to comply with the terms of a February 18, 2010, settlement agreement. In dismissing this claim the Agency found that it was not within its purview to process this matter as part of a complaint of discrimination, pointing to a provision in the settlement agreement indicating breach claims should be processed in accordance with 29 C.F.R. � 1614.504. The EEOC found that the breach claim should be processed under 29 C.F.R. � 1614.504, and noted the Agency referred the breach claim to its Office of Compliance.1
The EEOC reversed a portion of the Agency's dismissal, and hence ordered the Agency to investigate the following issues: whether the Agency subjected Complainant to discrimination on the bases of race (African-American), sex (male), color (Black), and reprisal for prior protected EEO activity when:
1. On October 27, 2010, it failed to timely process his Office of Workers' Compensation Program (OWCP) claims; and
2. From October 17, 2010 - March 11, 2011, Complainant's travel vouchers were not approved.
The EEOC affirmed the dismissal of the remainder of the complaint. The parties did not request that the EEOC reconsider its decision, and it became final. Thereafter, the Agency investigated the two remanded claims, listed above.
On May 24, 2012, prior to the completion of the investigation (which was completed), Complainant filed a civil action (identified as Civil Action No. 2:12-cv-01386) in the United States District Court for the District of South Carolina.2 In the civil action complaint Complainant alleged the Agency violated Title VII, and at paragraphs 7, 9 and 10 therein he alleged that the Agency violated the (referenced) settlement agreement and he was discriminated against when he was not reimbursed for automobile mileage (a reference to his travel vouchers) and the Agency refused to timely process his workers' compensation claim. Complainant attached a copy of EEOC's decision in EEOC Appeal No. 0120113581 to his civil action complaint.
The Agency dismissed the entire administrative EEO complaint on the grounds that Complainant filed a civil action on the matter.
On appeal Complainant argues, in relevant part, that he filed a civil action on the portions of EEOC Appeal No. 0120113581 which affirmed the Agency's dismissal and the breach issues.3
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).
Based on a review of the civil action, the records in this case and EEOC Appeal No. 0120113581, and Complainant's admission on appeal regarding the breach matter, we find that Complainant filed a civil action on the above two remanded claims and his claim of breach. We need not address whether the civil action actually encompasses the remaining issues since they were dismissed in Sutton v. Department of Agriculture, EEOC Appeal No. 0120113581 (Feb. 23, 2012), and no one filed a request for reconsideration thereon. With this modification, the Agency's dismissal 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
September 5, 2013
__________________
Date
1 In adjudicating the appeal before us, we also reviewed the record in EEOC Appeal No. 0120113581.
2 A review of the Court's computerized docket reveals that as of August 29, 2013, the civil action is still pending.
3 Complainant also argues that the Agency's brief in opposition to the appeal is untimely. Complainant sent his brief in support of the appeal to the Agency via FedEx April 25, 2013. The Agency filed its brief in opposition to the appeal on May 29, 2013. The time limit to file the opposition brief is 30 days after receiving the appeal in support of the appeal. 29 C.F.R. � 1614.403(f). The record does not reflect when the Agency received Complainant's appeal brief. Accordingly, we find the Agency's opposition brief is timely.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120131589
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131589