Deborah D. LeBel, Complainant,v.John Ashcroft, Attorney General, Department of Justice Agency.

Equal Employment Opportunity CommissionJan 9, 2002
01A15257_r (E.E.O.C. Jan. 9, 2002)

01A15257_r

01-09-2002

Deborah D. LeBel, Complainant, v. John Ashcroft, Attorney General, Department of Justice Agency.


Deborah D. LeBel v. Department of Justice

01A15257

January 9, 2002

.

Deborah D. LeBel,

Complainant,

v.

John Ashcroft,

Attorney General,

Department of Justice

Agency.

Appeal No. 01A15257

Agency No. I-99-W096

DECISION

Based on a review of the record, we find that although the agency

dismissed complainant's complaint for raising the same matter in an

appeal to the MSPB, the complaint is more properly dismissed pursuant to

29 C.F.R. � 1614.107(a)(3), for raising the same matter in a civil action.

Complainant filed a formal complaint on May 17, 1999, alleging that she

was subjected to discrimination on the bases of sex (female), disability

(unspecified), age (49), and in reprisal for prior EEO activity when

on January 29, 1999, she received a proposal to terminate her from her

position as a Senior Immigration Inspector and on July 3, 1999, she was

terminated from that position.

The regulation set forth at 29 C.F.R. � 1614.107(a)(3) allows for the

dismissal of a complaint that is pending in a United States District

Court in which the complainant is a party. 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 Shapiro v. Department of the Army , EEOC Request No. 05950740 (October

10, 1996); Stromgren v. Department of Veterans Affairs, EEOC Request

No. 05891079 (May 7, 1990); Kotwitz v. United States Postal Service,

EEOC Request No. 05880114 (October 25, 1988).

The record indicates that on June 16, 2000, complainant filed a civil

action (00 CV 1216) in the United States District Court, Southern District

of California, concerning the same issues raised in complainant's EEO

complaint. Accordingly, the agency's decision to dismiss complainant's

complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 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 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 (S0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

January 9, 2002

__________________

Date