01993892
04-03-2001
Dianne Derheim, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Dianne Derheim v. U.S. Department of Transportation
01993892
April 3, 2001
.
Dianne Derheim,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01993892
Agency No. 5-98-5150B
DECISION
Upon review, the Commission finds that the agency properly dismissed
the instant complaint on the grounds that all of the claims raised
therein were previously adjudicated in a civil action decided by a
United States District Court in which complainant was a party. See 29
C.F.R. � 1614.107(a)(3).
In a complaint received by the agency on July 27, 1998, complainant
claims that the agency failed to issue a final decision regarding her
prior 1993 EEO claim, so that she did not exhaust her administrative
remedies prior to filing the claim as a civil action in the United
States District Court, District of North Dakota, Southeastern Division
(Civil Action No. A3-93-104), on July 13, 1993. Complainant now argues
that the civil action should have been dismissed, and that the trial
and resulting verdict in favor of the agency were �illegal.� On appeal,
complainant submits numerous statements with supporting documentation, and
asks the Commission to order the agency to reinstate her 1993 complaint.
In this case, the record confirms that complainant filed the above
referenced civil action on the date indicated. Furthermore, review of the
pertinent evidence demonstrates that the matters alleged in the instant
complaint, specifically complainant's claims regarding breach of an April
1, 1993 settlement agreement and subsequent retaliatory harassment, were
fully adjudicated in the civil action, and resulted in a jury verdict
in favor of the agency on January 27, 1995. Therefore, we find that
the agency's dismissal pursuant to 29 C.F.R. � 1614.107(a)(3) was proper.
Moreover, we find that complainant is now attempting to improperly
use the EEO process to lodge an impermissible collateral attack on the
federal district court proceeding. See Wills v. Department of Defense,
EEOC Request No. 05970596 (July 30, 1998). In this regard, we note that
the Commission does not have the authority to review decisions rendered
in the federal district courts, including determinations of jurisdiction.
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
April 3, 2001
__________________
Date