01a53706
08-24-2005
Diletta Renier-Dow, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Diletta Renier-Dow v. Department of Veterans Affairs
01A53706
08-24-05
.
Diletta Renier-Dow,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A53706
Agency No. 2003-0501-2005100670
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 22, 2005, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. In her
complaint, filed on February 3, 2005, complainant alleged that she was
subjected to discrimination on the bases of race (Italian), national
origin (Italian), sex (female), religion (Catholic), and reprisal for
prior EEO activity when:
On January 10, 2005, she was issued a Proposed Discharge for professional
misconduct;
On October 21, 2004, her special pay was discontinued; and
On or about January 9, 2004, her clinical privileges, including working
at community hospitals, were put on temporary summary suspension status
pending the results of an investigation into allegations of inappropriate
medical practice.
The agency dismissed complainant's complaint on the basis that, as of
February 8, 2005, the complaint was the basis of a pending civil action
in a United States District Court. See 29 C.F.R. � 1614.107(a)(3).
On appeal, complainant alleges that the agency should not have dismissed
her complaint because: (1) 180 days had not passed since the filing of
the administrative complaint, as required for dismissal under 29 C.F.R. �
1614.107(a)(3); (2) complainant's civil action did not make a claim under
Title VII, but rather was a request for immediate injunctive relief;
and (3) the civil action was voluntarily dismissed without prejudice on
March 29, 2005.
EEOC Regulation 29 C.F.R. � 1614.107(a)(3) provides that, prior to
a request for a hearing in a case, 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. This regulation is designed 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. Jerry v. Department
of Justice, EEOC Request No. 05930508 (January 21, 1994).
We note that dismissal of a complaint is warranted when the issues in the
complaint and in the civil action are the same, and when the complaint
and the civil action allege violation of the same statutes. Krumholz
v. Department of Veterans Affairs, EEOC Request No. 05940411 (March 23,
1995). If the complaint alleges violation of a statute not alleged in
the civil action; or if the allegations raised in the civil action,
while similar in nature to the allegations raised in the complaint,
are brought under bases which are not covered by the statutes listed in
29 C.F.R. � 1614.408, the agency may not dismiss the complaint pursuant
to 29 C.F.R. � 1614.107(c). Evans v. Department of Veterans Affairs,
EEOC Request No. 05940499 (May 18, 1995). Moreover, the Commission has
held that access to the administrative process must be maintained for
individuals whose civil actions are dismissed without prejudice. See Hill
v. United States Postal Service, EEOC Request No. 05991158 (April 11,
2002); Cooper v. Department of the Treasury, EEOC Request No. 05920795
(April 8, 1993).
In the present matter, the record reflects that complainant filed
her administrative complaint on February 3, 2005, and her request for
injunctive relief from the United States District Court for the District
of New Mexico (Case no. CIV-05-0134 LH WD) five days later on February
8, 2005. She brought her civil action pursuant to the Administrative
Procedures Act, 5 U.S.C. �� 702-705; the Mandamus and Venue Act, 28
U.S.C. � 1361; and the Declaratory Judgment Act, 28 U.S.C. � 2001; and
said civil action was dismissed without prejudice on March 29, 2005.
Based upon the record before us, the Commission finds that 180 days
had not yet passed since the filing of complainant's administrative
complaint; complainant's civil action did not allege discrimination under
Title VII, focusing instead on injunctive relief under the previously
named statutes; and complainant's civil action was dismissed without
prejudice. For these three reasons, it was inappropriate for the agency
to dismiss complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(3).
Accordingly, the decision of the agency is reversed and remanded for
further processing in accordance with this decision and the proper
regulations. The parties are advised that this decision is not a decision
on the merits of complainant's complaint. The agency shall comply with
the Commission's Order set forth below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the
date you filed your complaint with the agency, or filed your appeal
with the Commission. 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. 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
_____08-24-05_____________
Date