Carmen Montanez, Complainant,v.Bruce Babbitt, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionMar 15, 2000
01983465 (E.E.O.C. Mar. 15, 2000)

01983465

03-15-2000

Carmen Montanez, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.


Carmen Montanez v. Department of the Interior

01983465

March 15, 2000

Carmen Montanez, )

Complainant, )

) Appeal No. 01983465

v. ) Agency No. FNP-95-109

)

Bruce Babbitt, )

Secretary, )

Department of the Interior, )

Agency. )

____________________________________)

DISMISSAL OF APPEAL

On April 3, 1998, complainant filed an appeal with this Commission from

the February 27, 1998 final agency decision finding no discrimination<1>

On or about August 24, 1998, complainant filed a civil action (identified

as Civil Action No. 98-CV-5508 (JG)) in the United States District Court

for the Eastern District of New York. The record further discloses

that the claims 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).

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.407) provides that a complainant

may file a civil action in U.S. District Court after 180 days from the

date of filing an appeal with the Commission, if there has been no final

decision by the Commission. The Commission notes that while complainant's

civil action was filed prior to the expiration of the 180-day period,

complainant's appeal should be dismissed in view of the Commission's

long-standing practice of conserving resources and avoiding the potential

for inconsistent or conflicting decisions. See Posey v. Department of

the Navy, EEOC Appeal No. 01951777 (September 21, 1995).

Accordingly, complainant's 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:

March 15, 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.