01990369
01-19-2000
Pamela J. Jordan, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Pamela J. Jordan v. Department of the Treasury
01990369
January 19, 2000
Pamela J. Jordan, )
Complainant, )
)
v. ) Appeal No. 01990369
) Agency No. 95-3012
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
____________________________________)
DECISION
On October 9, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) received by her on September 11,
1998, pertaining 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.<1> In her complaint, complainant alleged that
she was subjected to discrimination on the bases of sex (female), and race
(African American) when:
she was denied promotion to the position of Operating Accountant,
GS-510, grades 7-12, on a continuous basis from 1988 through 1994.
The instant matter initially came before the Commission in Jordan
v. Department of the Treasury, EEOC Appeal No.01962943 (May 7, 1998).
Therein, complainant had appealed the agency's decision finding that
her allegations of ongoing discrimination did not establish a continuing
violation. While the Commission affirmed the agency's decision, finding
that complainant had a reasonable suspicion of discrimination and failed
to timely seek counseling regarding her concerns, it ordered the agency
to continue the processing of one allegation of non-promotion involving
Announcement No. HQA/93-228PG.
On August 10, 1998 complainant filed a civil action in the Southern
District of Indiana (Civil Case No. IP98-1092C H/G) alleging that she
had been denied promotions on an ongoing basis from 1988 through 1994.
The agency dismissed complainant's complaint pursuant to Volume 64
Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter cited as
29 C.F.R. � 1614.107(a)(3)), on the grounds that the instant complaint is
the basis of a pending civil action in a United States District Court. On
appeal, counsel for complainant asserts that the agency's decision to
dismiss complainant's entire complaint was in error in light of the May
7, 1998 OFO decision which ordered the agency to process the allegation
of failure to promote involving agency Announcement No. HQA/93-228PG.
Upon review, we find that appellant's allegation of failure to promote
with respect to Announcement No. HQA/93-228PG is encompassed by
complainant's August 10, 1998 civil suit. Complainant's civil action
alleges that the defendant agency engaged in ongoing discrimination
by repeatedly failing to promote her during a 6 year period from 1988
through 1994. The record indicates that complainant's non-selection
for Announcement No. HQA/93-228PG occurred June 14, 1994.
EEOC Regulation 29 C.F.R. � 1614.107(a)(3) provides that the agency
shall dismiss an entire complaint that is the basis of a pending civil
action in a United States District Court in which the complainant is a
party provided that at least 180 days have passed since the filing of
the administrative complaint, or that was the basis of a civil action
decided by a United States District Court in which the complainant
was a party. The purpose of this regulation, and of EEOC Regulation
29 C.F.R. � 1614.410 which provides that the filing of a civil action
shall terminate the Commission's processing of an appeal, is to prevent
a complainant from simultaneously pursuing both administrative and
judicial remedies on the same matters and, thereby, wasting resources
and creating the potential for inconsistent or conflicting decisions. See
Shapiro v. Department of the Army, EEOC Request No. 05950740 (October 10,
1996), and decisions cited therein. Accordingly, the agency's decision
dismissing complainant's complaint is AFFIRMED for the reasons set
forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
January 19, 2000
__________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ ____________________________
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.