Pamela J. Jordan, Complainant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionJan 19, 2000
01990369 (E.E.O.C. Jan. 19, 2000)

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.