0120120806CivAct
10-10-2012
Jean D. Francis, Complainant, v. Hilda L. Solis, Secretary, Department of Labor, Agency.
Jean D. Francis,
Complainant,
v.
Hilda L. Solis,
Secretary,
Department of Labor,
Agency.
Appeal No. 0120120806
Agency No. 10-11-001
DISMISSAL OF APPEAL
Complainant filed an appeal with this Commission from the Agency's November 9, 2011 final action concerning her equal employment opportunity (DDO) complaint alleging discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Chief at the Agency's Branch of Budget Formulation and Implementation, Office of Management, Administrative and Planning, Employee Standards Administration (ESA) in Washington D.C.
On October 6, 2009, Complainant filed the instant formal complaint. Therein, Complainant alleged that she was subjected to harassment and a hostile work environment on the bases of national origin (West Indies) and religion (Seventh Day Adventist) when:
a. during a meeting, Complainant's supervisor (S1) put her finger in Complainant's face and spoke to her in a loud and abusive manner, telling Complainant that she should come to her, and not the other way round;
b. S1 required Complainant to brief her twice daily which was not imposed on any other Branch Chief;
c. S1 set up standards for her than any other Branch Chief's work;
d. S1 continuously reminded her face-to-face and telephonically that she was still on probation;
e. S1 requested that Complainant's subordinates report Complainant's activities to her;
f. the Director of the Division of Financial Management (D1) repeatedly raised her voice at Complainant during meetings and told her that she did not trust her;
g. on March 17, 2009, she was placed on a Performance Improvement Plan (PIP);
h. during June 2009, she was not granted a within grade increase;
i. she was notified she failed each of the elements covered in her PIP and was reassigned to a non-supervisory GS-15 position; and
j. she was removed from her office and assigned a cubicle.
Following the investigation into her formal complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On September 30, 2011, the AJ issued a decision by summary judgment in favor of the Agency. The Agency fully implemented the AJ's decision in its final order. The instant appeal followed.
ANALYSIS AND FINDINGS
On June 13, 2012, Complainant filed a civil action (identified as Civil Action No. 12-964 (ESH) in the United States District Court for the District of Columbia. 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. Dep't of Veterans Affairs, EEOC Request No. 05891079 (May 7, 1990); Sandy v. Dep't of Justice, EEOC Appeal No. 01893513 (October 19, 1989); Kotwitz v. U.S. Postal Serv., 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
October 10, 2012
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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