0120110786
08-04-2011
Imelda R. Tovar, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Imelda R. Tovar,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120110786
Agency No. ARCCAD01MAY01853
Hearing No. 451-2010-00091X
DISMISSAL OF APPEAL
Complainant filed an appeal with this Commission from the October 7,
2010 final Agency action implementing the EEOC Administrative Judge’s
(AJ) decision finding of no discrimination with regard to her complaint
of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
an Environmental Protection Specialist at the Agency’s Corpus Christi
Army Depot facility in Corpus Christi, TX. On May 12, 2009, she filed
a formal complaint alleging she was discriminated against based on her
sex (female) and reprisal for prior protected EEO activity when on or
about May 12, 2009, her duties as a Contract Officer Representative
were terminated.
On November 2, 2010, Complainant filed a civil action (identified as Civil
Action No. 2:10-cv-00353) in the United States District Court for the
Southern District of Texas.1 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. 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
Serv., 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 (M0610)
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), at 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 (S0610)
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 (Z0610)
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
August 4, 2011
__________________
Date
1 The Court’s computerized docket shows that as of August 1, 2011,
the civil action is still pending.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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