U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Vern R.,1 Complainant, v. Robert Wilkie, Acting Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120162363 Hearing No. 440-2016-00068X Agency No. 200J05782015102904 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated June 13, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Police Officer, GS-0083-6 at the Agency's Edward Hines, Jr. Hospital facility in Hines, Illinois. On July 1, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Caucasian) and sex (male) when, from when he was hired until November 2011, Complainant was not given back pay for his retention bonus, but found out later that an African American female coworker received a retention bonus with back pay. The Agency accepted the matter for investigation. Following the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On May 18, 2016, the Agency informed the AJ that Complainant had filed a separate complaint in the United States Court of Federal Claims on February 24, 2016, in which he alleged that the Agency improperly denied him pay retention from April 10, 2010 through November 20, 2011. On May 23, 2016, the AJ dismissed the complaint as a whole and remanded the matter to the Agency for issuance of a final decision. The AJ found that Complainant had a pending complaint with the U.S. Court of Federal Claims (1:16-cv-00257-SGB), raising the same underlying issue as his EEO complaint involving the Agency's failure to provide him with retroactive retention pay from the date of hire through November 20, 2011. The AJ held that Complainant is not entitled to double recovery on the issue of pay retention. Therefore, the AJ found that the matter at hand should be dismissed pursuant to 29 C.F.R. § 1617.107(a)(3). The Agency issued a Final Order dismissing the complaint pursuant to 29 C.F.R. § 1617.107(a)(3). This appeal followed. On appeal, Complainant's attorney noted that his civil action was not filed under Title VII. As such, the Attorney asserted that the AJ's dismissal was not appropriate. The Agency asked that the Commission affirm its final order implementing the AJ's decision to dismiss the complaint. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. §1614.107(a)(3) provides that an EEO complaint should be dismissed if it "is the basis of a pending civil action in a United States District Court in which the complainant is a party." See also 29 C.F.R. § 1614.409, which provides that the filing of a civil action "shall terminate Commission processing of the appeal." The Commission has stated that in order to dismiss an EEO complaint that involves the same matters as are raised in a civil action, the civil action must have been brought under one of the statutes prohibiting discrimination. Heflin v. Dep't of the Army, EEOC Request No. 05940474 (September 29, 1994); Brown v. United States Postal Service, EEOC Appeal No. 0120093096 (April 27, 2011); Complainant v. Department of Veterans Affairs, EEOC Request No. 0520140109 (April 30, 2014). Here, while Complainant filed his claim for retroactive retention pay with the Court of Federal Claims, he alleged that the Agency's action constituted a violation of 5 U.S.C. § 5596, as an "unjustified personnel action." However, unlike his EEO complaint, Complainant has not raised a claim in Court of a violation of one of the statutes prohibiting employment discrimination. As such, we conclude that the dismissal of Complainant's EEO complaint based on the filing of the civil action was in error. A more appropriate way of viewing this matter is whether or not the complaint in the Court of Federal Claims rendered Complainant's EEO complaint moot. See 29 C.F.R. § 1614.107(a)(5). Here, however, the record contains no indication of the resolution of Complainant's civil action or any other evidence to determine if his EEO complaint has been rendered moot. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final order and REMAND the complaint for processing in accordance with the ORDER below. ORDER The Agency shall submit to the Hearings Unit of the Chicago District Office a request for a hearing on the remanded complaint, along with a copy of this decision, within 30 calendar days of the date of this decision. The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit within 30 calendar days of the date this decision. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the request and complaint file have been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109, and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 May 3, 2018 __________________ 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 0120162363 5 0120162363