Diletta Renier-Dow, Complainant,v.R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionAug 24, 2005
01a53706 (E.E.O.C. Aug. 24, 2005)

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