0120162765
01-27-2017
Sang L.,1 Complainant, v. Catherine McCabe, Acting Administrator, Environmental Protection Agency, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sang L.,1
Complainant,
v.
Catherine McCabe,
Acting Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 0120162765
Agency No. 2015-0015-HQ
DISMISSAL OF APPEAL
On Monday, August 29, 2016, Complainant timely2 filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated July 11, 2016, dismissing 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 worked as a Supervisory Biologist, GM-15 and Biologist - Senior Advisor, GS-15, at the Agency's Headquarters, Office of Pollution Prevention and Toxics in Washington, DC.
On February 4, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to disparate treatment discrimination and hostile work environment harassment based on his race (White), national origin (USA), sex (male), age (67) and reprisal for prior protected EEO activity when:
1. In and around early October 2013, upper level Manager 1 directed Manager 2 to conduct an illegal and unconstitutional interrogation of Complainant;
2. On an unspecified date, Agency Labor Relations Attorney 1 illegally delayed his retirement benefits;
3. From an unspecified date to July 31, 2014, his first line supervisor asked him for a "favor" - that he step aside as Branch Chief;
4. On or around July 31, 2014, he was removed from his office in a hostile and humiliating fashion when he was escorted from the building by security;
5. On or around early August 2014, Attorney 1 made threats against his retirement health benefits if he did not "go away" by agreeing to "voluntarily" waive his putative actions against the Agency and "voluntarily retire"; and
6. By letter dated October 7, 2014, Manager 1 removed him from federal service.
On October 7, 2015, Complainant filed a civil action (identified as Civil Action No. 1:15-cv-1644) in the United States District Court for the District of Columbia, as amended on February 11, 2016.3 The record further discloses that the claims raised therein are the same as those raised in the instant 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).
The Agency dismissed Complainant's administrative complaint on the ground that he filed a civil action on the same matters therein. On appeal, Complainant, represented by counsel, does not dispute this. Rather, he argues that an Agency may only use the civil action dismissal ground in 29 C.F.R. � 1614.107(a)(3) prior to a request for a hearing in a case.4
We note that while the Commission's electronic tracking system reflects that Complainant requested a hearing in another case, it does not reflect he did so on the instant complaint. In any event, filing a civil action terminates the Commission's processing of this appeal. 29 C.F.R. � 1614.409.
The FAD is AFFIRMED, and the appeal is DISMISSED.
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:
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 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
January 27, 2017
__________________
Date
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.
2 In opposition to Complainant's appeal, the Agency argues that he untimely filed his appeal. Submitting an electronic tracking postal receipt, the Agency contends that the FAD was delivered to Complainant's attorney on July 15, 2016, and hence the appeal was filed beyond the 30 calendar day time limit. We disagree that the appeal was untimely filed. First, in the FAD the address for filing an appeal with the Commission was cut off. Second, the above tracking number does not match the tracking number in the green postal domestic return receipt the Agency associated with the FAD. Third, Complainant's attorney writes that he did not receive the FAD until July 28, 2016. He writes that because the Agency used the incorrect zip code, the FAD was returned to the Agency and re-mailed to him. He submits a message to him by a UPS store indicating that a package with an identified tracking number was received by him on July 28, 2016. The identified tracking number is the same one on the postal receipt submitted by the Agency with its opposition argument.
3 The Court's electronic docket reflects that as of January 26, 2017, the civil action is still pending.
4 In opposition to Complainant's appeal brief, the Agency argues that the brief was untimely filed. We disagree. We received the brief by facsimile on October 24, 2016, the date through which this office granted Complainant a written extension to file the brief.
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