0120131851
02-12-2016
Katina R.,1 Complainant, v. Jenny R. Yang, 2 Chair, Equal Employment Opportunity Commission, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, DC 20507
Katina R.,1
Complainant,
v.
Jenny R. Yang, 2
Chair,
Equal Employment Opportunity Commission,
Agency.
Appeal No. 0120131851
Hearing No. 2011-33824
Agency No. 201133824
DISMISSAL
Complainant filed an appeal from the Agency's May 1, 2013, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.3 The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reason, the Commission DISMISSES the appeal.
The Commission's regulations provide, in pertinent part:
Filing a civil action under � 1614.407 [as pertains to Title VII of the Civil Rights Act of 1964, the Rehabilitation Act, or the Age Discrimination in Employment Act] or � 1614.408 [as pertains to the Equal Pay Act] shall terminate Commission processing of an appeal. If private suit is filed subsequent to the filing of an appeal, the parties are requested to notify the Commission in writing.
29 C.F.R �1614.409. Although at one time filing a civil action did not terminate Commission processing, the Commission amended its regulations in 1987 so as to prevent dual processing of a complaint in both the administrative and judicial fora. 52 F.R. 41922 (1987).
In the instant case, the Agency has recently advised the Commission that the same allegations raised in the complaint presently on appeal, based upon the same facts, have been raised by Complainant in a civil action before the United States District Court for the District of Columbia, Case No. 1:13-cv-01181-ABJ. Our review of the complaint filed in the civil action confirms the Agency's assertion. Accordingly, the appeal is DISMISSED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ B
Bernadette B. Wilson
Acting Executive Officer
Executive Secretariat
__2/12/16________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Here, the U.S. Equal Employment Opportunity Commission is both the respondent agency and the adjudicatory authority. The Commission's adjudicatory function is separate and independent from those offices charged with the in-house processing and resolution of discrimination complaints. For this decision, the term "Commission" will refer to the adjudicatory authority and the term "Agency" will refer to the respondent party in this matter. The Chair has recused herself from participating in the appellate processing of this case.
3 An independent contract Administrative Judge (AJ) issued a decision on January 7, 2013. In the absence of a final order from the Agency, Complainant filed her appeal. Thereafter, the Agency issued a final order. Accordingly, we find this matter is ripe for disposition. Where the EEOC is the respondent Agency, in accordance with Commission policy, a case is assigned to an independent contract Administrative Judge not employed by the Commission. Logan-King v. EEOC, EEOC Request No. 05A10082 (Jan. 3, 2002).
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