0120113471
11-05-2012
Larry E. Hogue, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Larry E. Hogue,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120113471
Hearing No. 510-2011-00007X
Agency No. ARMIAMI10JAN00071
DISMISSAL OF APPEAL
On July 6, 2012, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an EEOC Administrative Judge's (AJ) action on 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.1
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Strategic Fiscal Planner, with the Office of the Commander, Special Operations Command-South, Homestead Air Force Base, in Florida.
On or about March 4, 2010, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination based on his sex (sexual harassment), age (60), disability, and religion (he was repeatedly referred to as a Mormon by a co-worker, even though he is Methodist)2 when he was issued a notice of Termination During Probationary Period on November 30, 2009, effective December 8, 2009.3
On January 18, 2011, Complainant filed a Civil Action 1 (identified as Civil Action No. 1:11-cv-20187) in the United States District Court for the Southern District of Florida. He identified an Agency Human Resources Officer as the defendant, brought the civil action under 42 U.S.C. � 1983, and alleged his civil rights were violated when he was harassed and terminated. On February 22, 2011, the Court dismissed Civil Action 1 without prejudice, and reiterated this on March 4, 2011. On January 24, 2011, Complainant filed Civil Action 2 (identified as Civil Action No. 1:11-cv-20263) in the same court. Complainant brought this civil action against the Agency, and alleged therein that the Agency violated the ADEA when he was harassed and terminated. On June 21, 2011, the Court dismissed Civil Action 2 without prejudice. On July 5, 2011, Complainant filed Civil Action 3 (identified as 1:11-cv-22405) in the same court, which was amended on November 1, 2011. Complainant brought the civil action, as amended, against the Agency, and alleged, in relevant part therein that the Agency violated the ADEA when he was harassed and terminated. Civil Action 3 is scheduled for trial in March 2013, and as of October 29, 2012, is still pending.
In his June 15, 2011, dismissal of Complainant's request for a hearing, the AJ found that Complainant filed a civil action complaint in Federal District Court involving the same issues in his administrative complaint. The AJ found that the fact that Civil Action 1 was subject to dismissal did not negate that he filed suit in Federal District Court. Citing 29 C.F.R. � 1614.107(a)(3) the AJ dismissed Complainant's request for a hearing that the Agency had leave to process the complaint accordingly.
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).
Where a civil action is dismissed without prejudice, 29 C.F.R. � 1614.107(a)(3) and 29 C.F.R. � 1614.409 no longer operate as authority to dismiss an administrative EEO complaint on the same manner. Moctezuma v. United States Postal Service (Southeast Area), EEOC Request No. 0520100219 (Mar. 9, 2010). On appeal Complainant submitted the same argument opposing the dismissal that he submitted to the AJ -- that he never perfected Civil Actions 1 and 2 because he did not, among other things, pay the Court's filing fees, and hence these civil actions were not, in effect, filed. In opposition to the appeal the Agency argued that because Complainant filed civil actions 1 and 2 the Commission was divested of jurisdiction to process the administrative complaint. Since the Civil Actions 1 and 2 were dismissed without prejudice, they do not provide grounds to terminate Complainant's administrative complaint.4
We take administrative notice, however, of Civil Action 3, which is still pending, as of October 29, 2012. Since this civil action is on the same matters as Complainant's administrative complaint, Complainant's appeal is DISMISSED. See 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
November 5, 2012
__________________
Date
1 On June 15, 2011, an EEOC Administrative Judge (AJ) dismissed Complainant's request for a hearing on his administrative complaint because he filed a civil action on the same matter, and instructed that the Agency had leave to process the complaint accordingly. Prior to the Agency taking action, Complainant filed a premature appeal contesting the dismissal. While his appeal was pending, the Agency submitted a brief arguing that Complainant's administrative complaint should be dismissed because he filed two civil actions on the same matter as his administrative complaint. Given this argument we find that Complainant's appeal, which in effect challenges the dismissal of his complaint is perfected, and is timely.
2 Complainant also alleged he was retaliated against for whistleblower activity. The EEOC does not have jurisdiction over whistleblower claims.
3 The Agency's definition of Complainant's complaint included Complainant's allegations on why the termination was improper. We have shortened the definition to the actual claim, i.e., discriminatory termination.
4 Given this, we need not address the legal effect of Civil Action 1 being against an Agency Human Resources Officer and being filed under 42 U.S.C. � 1983.
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0120113471
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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