0120101062
06-15-2010
Janet Howard, Complainant, v. Gary Locke, Secretary, Department of Commerce, Agency.
Janet Howard,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce,
Agency.
Appeal No. 0120101062
Agency No. 06-67-00207
07-67-00010
DISMISSAL OF APPEAL
Complainant filed an appeal with this Commission from the December 17,
2009 final agency decision finding no discrimination with regard to
her complaints 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. In her complaint, complainant alleged that she was subjected
to discrimination on the bases of race (not specified), national origin
(not specified), disability (Post Traumatic Stress Disorder), age (not
specified), and reprisal for prior protected EEO activity when:
1. On September 14, 2006, complainant was informed that her advanced
sick leave request was not approved, even though she had previously
submitted leave slips on August 25 and 31, 2006, and had been approved
for the leave in July 2006.
2. Complainant was denied a detail opportunity, despite having taken a two
(2)-year supervisory executive leadership development training course;
3. She was placed on a Performance Improvement Plan (PIP) effective
March 27, 2007, for a period of 90 days;
4. Due to her placement on a PIP, complainant was disqualified
as a candidate from applying for two (2) GS-1801-13 Compliance
Specialist/Analyst positions;
5. Since being placed on a PIP effective March 27, 2007 for a period of
90 days, management has re-delegated responsibility for reviewing her
performance three (3) times and has not indicated to her whether or not
her PIP has been successfully completed
On October 5, 2005, complainant filed a civil action (identified as
Civil Action No. 1:05CV1968) in the United States District Court for
the District of Columbia. On December 11, 2007, complainant filed a
motion to amend the civil action to include the agency complaints numbers
06-67-00207 and 07-67-00010. 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
June 15, 2010
__________________
Date
2
0120101062
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101062