01A64200
09-14-2006
Janet B. Sullivan, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Janet B. Sullivan,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A64200
Agency No. ARCARSON05NOV12364
DISMISSAL OF APPEAL
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 31, 2006, 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. and Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 et seq. Complainant claimed that she was discriminated
against, as applicable, based on her sex, disabilities and reprisal for
prior EEO activity when (1) on June 9, 2003 she was required to participate
in an unfair and improperly conducted negotiated settlement conference for
which she was not in the proper mental state and physical state of being,
(2) in December 2005, the agency denied her request for an Army Regulation
(AR) 15-6 investigation regarding claim 1, and (3) her EEO claim regarding
claim 1 was improperly processed in late 2005 and early 2006.
On May 2, 2006, complainant filed a civil action (identified as Civil
Action No. 06-CV-00838) in the United States District Court for the
District of Colorado (Denver).[1] The record further discloses that the
claims raised therein are the same as those raised in the instant
complaint. The regulation found at 29 C.F.R. � 1614.409 provides that the
filing of a civil action "shall terminate Commission processing of the
appeal." 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 Stromgren v.
Department of Veterans Affairs, EEOC Request No. 05891079 (May 7, 1990);
Sandy v. Department of Justice, EEOC Appeal No. 01893513 (October 19,
1989); Kotwitz v. USPS, EEOC Request No. 05880114 (October 25, 1988).
Accordingly, complainant's appeal is hereby dismissed. 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 (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
September 14, 2006
__________________
Date
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[1] The electronic docket of the court indicates that as of September 11,
2006, the civil action was still pending.