01A43068
07-29-2004
Anne Whiteman, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Anne Whiteman v. Department of Transportation
01A43068
July 29, 2004
.
Anne Whiteman,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A43068
Agency Nos. 5-00-5060, 5-01-5003 and 5-04-5032
DISMISSAL OF APPEALS
Complainant filed two appeals with this Commission from two agency
decisions dated March 3, 2004, (Agency Nos. 5-00-5060 and 5-01-5003)
and March 26, 2004 (5-04-5032).
The record reveals that complainant entered into a settlement agreement
with the agency dated February 6, 2003, resolving her complaints under
Agency Nos. 5-00-5060, 5-01-5003. The agreement provided in pertinent
part that:
The Agency agrees to give Complainant a one time priority consideration
as defined in paragraphs 8a-8f of this Agreement for the next available
Operations Supervisor position at Dallas Fort Worth Tower.
In her claim of breach, complainant alleged that the agency advertised for
an Operations Supervisor position at the Dallas Fort Worth (DFW) Tower on
October 8, 2003, without offering her priority consideration in accordance
with provision (8) of the February 6, 2003 settlement agreement.<1>
The agency issued a decision finding that it was in compliance with the
settlement agreement which complainant appealed to the Commission.
The record reveals that complainant also filed a new complaint under
Agency No. 5-04-5032 alleging that the agency discriminated against her
based on reprisal when she was not selected for a supervisory position
at the DFW Tower on October 8, 2003. The agency issued a decision March
26, 2004, dismissing her complaint and complainant subsequently filed
the present appeal.
On June 14, 2004, complainant filed a civil action (identified as Civil
Action No. 4:04CV173) in the United States District Court for the Eastern
District of Texas, Sherman Division. The record
further discloses that the claims raised therein are the same as those
raised in the present complaints. 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.
Accordingly, complainant's appeals are 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
July 29, 2004
__________________
Date
1Complainant originally claimed that provisions (5) and (9) of the
settlement agreement were also breached; however, she did not raise
these contentions on appeal.