Donna Jenkins-Chestnut, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionMay 7, 2009
0120091071 (E.E.O.C. May. 7, 2009)

0120091071

05-07-2009

Donna Jenkins-Chestnut, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.


Donna Jenkins-Chestnut,

Complainant,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120091071

Agency No. 2004-0688-2008100692

DISMISSAL OF APPEAL

Complainant filed a timely appeal with this Commission from a final

agency decision dated November 18, 2008, dismissing her complaint

of unlawful employment discrimination in violation of Section 501 of

the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29

U.S.C. � 791 et seq. In her formal EEO complaint dated December 28,

2007, complainant alleged that the agency discriminated against her on

the bases of disability (Bilateral Carpel Tunnel Syndrome) and reprisal

for prior protected EEO activity when (1) between August 7, 2007 and

December 12, 2007, management transferred her duties to a coworker and

did not give her replacement assignments, (2) on November 16, 2007,

management changed a critical element on her performance appraisal from

"Exceptional" to "Fully Successful," and (3) management subjected her

to hostile work environment harassment regarding sick leave usage,

her office location and negative remarks.

On February 20, 2009, complainant filed a civil action (identified as

Civil Action No. 1:09-cv-00337) in the United States District Court for

the District of Columbia. The record further discloses that the claims

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. 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

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

May 7, 2009

__________________

Date

2

0120091071

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120091071