01993240
01-13-2000
Alberta Merritt, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Alberta Merritt, )
Complainant, )
) Appeal No. 01993240
v. ) Agency No. 98-0457
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DISMISSAL OF APPEAL
By Notice of Appeal postmarked March 13, 1999, complainant filed an
appeal with this Commission from the February 22, 1999, final agency
determination that it did not breach the August 3, 1998 settlement
agreement between the parties.<1> Complainant's appeal to this
Commission requests that her complaint be reinstated from the point at
which processing ceased pursuant to Volume 64 Fed. Reg. 37,644, 37,660
(1999)(to be codified as 29 C.F.R. �1614.504(a)).
On November 8, 1999, complainant filed a civil action (identified as
Civil Action No. C 3 99-594) in the United States District Court for the
Southern District of Ohio, Western Division. The record further discloses
that the allegations raised therein are the same as those raised in the
instant complaint. 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified and
hereinafter referred to as 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. Department of Veterans Affairs,
EEOC Request No. 05891079 (May 7, 1990); Sandy v. Department of Justice,
EEOC Appeal No. 01893513 (October 19, 1989); Kotwitz v. USPS, EEOC Request
No. 05880114 (October 25, 1988). Accordingly, complainant's March 13,
1999 appeal is hereby DISMISSED. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
Jan. 13, 2000
__________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ ______________________________
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.