0120091454
07-22-2009
Bettye A. Loving, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Bettye A. Loving,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120091454
Hearing No. 443-08-00061X
Agency No. IRS-05-0322F
DISMISSAL OF APPEAL
Complainant filed an appeal with this Commission from the January 9, 2009
final agency decision dismissing her 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.
In a formal EEO complaint dated September 27, 2005 and subsequent
amendments, complainant alleged that the agency subjected her to a hostile
work environment on the bases of race (African-American) and reprisal for
prior protected EEO activity. Specifically, complainant alleged that,
between October 2005 and June 2006, Supervisors One and Two (S1 & S2)
physically harassed her; issued her a proposed 15-day suspension; issued
her counseling memorandums citing performance deficiencies, improper
requests for leave and insubordination; changed her position duties;
used other employees to check on her; bombarded her with unnecessary
emails; charged her as absent without leave; failed to issue her an
annual performance appraisal; gave her directives inappropriate for
their position at the time; denied her use of "use or lose" leave;
and made false accusations against her. Complainant added that upper
management allowed their actions and, effective February 17, 2007,
removed her from Federal employment.
Complainant filed an appeal with the Merit Systems Protection Board (MSPB)
regarding her removal, which was docketed as MSPB No. CH-0752-07-0318-I-1.
The MSPB affirmed the agency's removal and, subsequently, complainant
filed a petition for review with the full Board, which was denied
on September 17, 2008. Some of the incidents of the hostile work
environment claim went forward based on a request for a hearing before an
EEOC Administrative Judge (AJ). In a decision dated November 21, 2008,
the AJ found that the agency inappropriately dismissed complainant's
claim piecemeal (as individual claims rather than various incidents
supporting one harassment claim), and dismissed complainant's harassment
claim pursuant to 29 C.F.R. � 1614.107(a)(3). Specifically, the AJ
stated that complainant cited the same bases (race and retaliation),
time period (from October 2005 to her removal), responsible managements
officials (S1 and S2) and issue (harassment) in both her civil action and
EEO complaint. The agency fully implemented the AJ's dismissal in its
January 9 final decision. The instant appeal from complainant followed.
On appeal, complainant stated that her EEO complaint contains additional
harassing incidents.
The record discloses that, on October 17, 2008, complainant filed a
civil action (identified as Civil Action No. 08-C-08811) in the United
States District Court for the Eastern District of Wisconsin. The record
shows further that the claim and incidents raised therein are the same
as those raised in the instant 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 Service, 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 (M1208)
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), 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 (S0408)
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 (Z1008)
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
July 22, 2009
__________________
Date
1 We note that complainant stated that Civil Action No. 08-C-0881 includes
issues from a previous Federal court case, Civil Action No. 04-CV-262,
as a background history.
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0120091454
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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