EEOC Appeal 2020000190

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Leonardo M.,1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 2020000190
Hearing No. 410-2017-00255X
Agency No. 200I-0010-2016102195
DISMISSAL OF APPEAL
On October 1, 2019, the Equal Employment Opportunity Commission (EEOC or Commission)
received Complainant’s appeal via un-postmarked envelope from a final Agency action dated
August 27, 2019, implementing the decision of a Commission Administrative Judge’s (AJ)
decision 	finding 	no 	discrimination 	regarding 	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 was employed with the Agency
as an Emergency Management Specialist, GS-0089-13 at the Office of Emergency Management
in Duluth, Georgia. He is now retired.
On May 31, 2016, Complainant filed an equal employment opportunity (EEO) complainant
alleging he was subjected to a hostile work environment based on his sex, age (59 - 65) and reprisal
for prior protected EEO activity when:
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.

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1) 	On August 14, 2012, his first line supervisor (S1) placed him on a Performance
Improvement Plan (PIP);
2) 	On October 5, 2015, S1 cancelled his telework schedule;
3) 	On October 7, 2015, S1 denied him representation during a meeting to discuss a proposed
suspension;
4) 	On October 15, 2015, when he responded to an email about Ebola, S1 stood within three
feet of his personal space and in an unwelcome tone emphasized S1 was the Senior
Emergency Management Official;
5) 	On October 26, 2015, S1 issued him a 7-day suspension, effective November 8-14, 2015;
6) 	On November 19, 2014, 1 S1 issued him a reprimand;
7) 	On December 2, 2015, S1 instructed him to place his personal information on S1’s work
calendar;
8) 	As of February 16, 2016, he had not received a response to the administrative grievance he
filed on November 25, 2015;
9) 	On August 29, 2016, S1 issued him a proposed 14-day suspension;
10) On September 9, 2016, S1 delayed approval of his travel orders;
11) On September 20, 2016, he received a 14-day suspension, effective September 25, 2016 to
October 8, 2016 – which was also disparate treatment;
12) On November 29, 2017, S1 issued him Fiscal Year 2017 performance rating of fully
successful 	that 	included 	derogatory 	comments 	regarding 	his 	performance 	in 	the
justification section of the rating form;
13) On January 16, 2018, S1 denied his request for 90 minutes of compensatory time;
14) On May 24, 2018, S1 emailed him, and in a group forum, falsely accused him of wrongfully
calendaring his leave, when, in fact, he had properly calendared his leave; and
15) On July 2, 2018, S1 emailed him an extensive list of questions whose answers could take
a day or more to prepare and expected him to answer them in a meeting scheduled to occur
40 minutes later.

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Following an investigation, Complainant requested a hearing before an AJ with the EEOC. By
summary judgment without a hearing, the AJ found no discrimination. Thereafter, the Agency
issued a final order fully implementing the AJ’s decision. The instant appeal followed.
While his appeal was pending, Complainant on March 9, 2020, filed a civil action (identified as
Civil Action No. 1:20-cv-01081), as amended on September 11, 2020, in the United States District
Court for the Northern District of Georgia.2 Therein, he alleged a hostile work environment based
on his age, sex and reprisal for protected EEO activity when he was subjected to a hostile work
environment, and listed incidents 1 – 11. He attached the Commission AJ’s decision and the
Agency’s final order to his civil action, as amended. Based on the above, we find the claims raised
in the civil action complaint, as amended are the same as those raised in the instant administrative
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).
Accordingly, Complainant’s appeal is hereby DISMISSED. See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0620)
The Commission may, in its discretion, reconsider this appellate decision if the complainant or the
agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO)
within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration
elects to file a statement or brief in support of the request, that statement or brief must be filed
together with the request for reconsideration. A party shall have twenty (20) calendar days
from receipt of another party’s request for reconsideration within which to submit a brief or
statement in opposition. 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).
2 We take administrative notice that as of October 28, 2020, the civil action is still pending.

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Complainant should submit his or her request for reconsideration, and any statement or brief in
support 	of 	his 	or 	her 	request, 	via 	the 	EEOC 	Public 	Portal, 	which 	can 	be 	found 	at
https://publicportal.eeoc.gov/Portal/Login.aspx.
Alternatively, complainant can submit his or her request and arguments to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to
P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE,
Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider
shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the
applicable filing period. See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s
Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or
statement or brief in opposition must also include proof of service on the other party, unless
complainant files his or her request via the EEOC Public Portal, in which case no proof of service
is required.
Failure to file within the 30-day time period will result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of
the request. 	Any supporting documentation must be submitted together with the 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.

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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
November 4, 2020
Date