0120133327
10-10-2014
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120133327
Hearing No. 443-2013-00059X
Agency No. 200J-0695-2012102536
DECISION
On September 5, 2013, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an EEOC Administrative Judge's (AJ) decision dated August 30, 2013,1 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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 averred that he was a Compensated Work Therapy worker at the Clement J. Zablocki Medical Center in Milwaukee, Wisconsin.
On May 19, 2012, Complainant filed a formal complaint alleging that the Agency discriminated against him based on his sex (male), disabilities, age (52) and reprisal for prior protected EEO activity when:
1. On January 16, 2012, he learned from Human Resource Management Service (HRMS) that he was not selected for the position of Lead Support Assistant, GS-5;
2. On January 16, 2012, he learned from HRMS that he was not selected for the position of Prosthetics Clerk, GS-0303-6;
3. On January 16, 2012, he learned that HRMS that he was not selected for the position of Lead Supply Technician, GS-2005-7; and
4. On March 29, 2012, he was interviewed for the position of Medical Support Clerk, GS-5, but was not advised of the selection for the position.
Following an investigation, an EEOC AJ dismissed Complainant's complaint on the grounds that he filed a civil action on the same matter. Specifically, the AJ found that on May 3, 2013, Complainant filed Civil Action 1:13-cv-03380 in the United States District Court for the Northern District of Illinois (Civil Action 1), and alleged therein that he was discriminated against when he was not selected/promoted for Agency vacancies.
Civil Action 1 was vague concerning which non-selections were being litigated. On appeal, Complainant does not contest that issues 1 - 4 are within the scope of Civil Action 1 or make any other argument.
In opposition to the appeal the Agency argues that Complainant's complaint was properly dismissed.
ANALYSIS AND FINDINGS
We take administrative notice that on May 17, 2013, the District Court dismissed Civil Action 1 "without prejudice" for being filed in the wrong venue -- the proper venue was in Wisconsin, not Illinois. On November 27, 2013, the United States Court of Appeals for the Seventh Circuit, Appeal No. 13-1243, affirmed the District Court's dismissal. The Appeals Court noted that Complainant was barred from filing civil suits in the Eastern District of Wisconsin, where Milwaukee is located, in part for repeatedly suing for veteran benefits despite a prior ruling that his claims were res judicata. The Court found that this helped explain why Complainant filed his present suit in the Northern District of Illinois, albeit he did not make proper venue there.
We take administrative notice that on December 4, 2013, Complainant filed Civil Action 3:13-cv-00835 in the United States District Court for the Western District of Wisconsin which he entitled "Brief to Change Venue & Reopen Due to the Circumstance" (Civil Action 2). Therein he also alleged that he was not selected for unspecified positions, and raised Title VII, albeit he emphasized the Racketeer Influenced and Corrupt Organizations Act (RICO). He alleged a conspiracy during the past ten years among Veterans Affairs and its Compensated Work Therapy Program for veterans regarding, among other things, not being selected. Civil Action Complaint 2, at pages 2, 7, and 25 - 26. We find that issues 1 - 4 are within the scope of Civil Action 2.
On January 27, 2014, the District Court for the Western District of Wisconsin dismissed Civil Action 2. It found that while Civil Action 2 was nearly incomprehensible, it was clear Complainant was attempting to continue Civil Action 1 which was dismissed for improper venue. The Court found it did not have the power to reopen Civil Action 1, and Civil Action 2 would proceed as a brand new action. The Court wrote it would usually allow a plaintiff who files an indecipherable pleading to file an amended complaint more clearly setting forth the factual allegations underpinning his claims. But it found that it appeared Complainant sought to refile his claims in the Western District of Wisconsin, rather than the Eastern District of Wisconsin because he knew he would not be allowed to proceed in the Eastern District. The Court dismissed and closed Civil Action 2 for improper venue. It explained that while it was not the Court's policy to routinely dismiss cases on this ground, it could not see any reason to allow Complainant to circumvent the Eastern District's bar by bringing yet another case against the Agency's office in Milwaukee. On March 26, 2014, the United States Court of Appeals for the Seventh Circuit, Appeal No. 14-1232, affirmed the District Court's dismissal.
Given the above, we AFFIRM the AJ's and Agency's decision to dismiss Complainant's complaint because he filed a civil action on the same matter (which has been dismissed with prejudice). 29 C.F.R. � 1614.409.
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
October 10, 2014
__________________
Date
1 According to the Agency, on October 7, 2013, it issued a final order dismissing Complainant's complaint because it was the basis of a pending civil action filed in a United States District Court. While Complainant's appeal was premature, the Agency issued its final order while the appeal was pending, perfecting the appeal.
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0120133327
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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