0520090271
03-30-2009
Nancy B. Marshall, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Nancy B. Marshall,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520090271
Appeal No. 0120082585
Agency No. 200I-0521-2006102200
DISMISSAL OF APPEAL
Complainant timely requested reconsideration of the decision in Nancy
B. Marshall v. Department of Veterans Affairs, EEOC Appeal No. 0120082585
(November 5, 2008). EEOC Regulations provide that the Commission may,
in its discretion, grant a request to reconsider any previous Commission
decision where the requesting party demonstrates 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. See 29 C.F.R. �
1614.405(b).
Our records indicate that on July 18, 2006, after complainant filed
her appeal with the Commission, she filed a civil action, Civil Action
No. CV-08-B-1282-S in the United States District Court for the Northern
District of Alabama, Southern Division. Therein, complainant raises
the same claims of a hostile work environment which she raised in
her EEO complaint, which is the subject of the instant request for
reconsideration.
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 pursing
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. United States
Postal Service, EEOC Request No. 05880114 (October 25, 1988).
Accordingly, complainant's request for reconsideration is DISMISSED.
The decision in EEOC Appeal No. 0120082585 is VACATED. There is no
further right of administrative appeal on the decision of the Commission
on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0408)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
March 30, 2009
__________________
Date
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0520090271
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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