01a41224
10-21-2005
Delores Lambert, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Delores Lambert v. Social Security Administration
01A41224
10-21-05
.
Delores Lambert,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A41224
Agency No. 478-89 et al.
Hearing No. 310-A0-5014x
DISMISSAL OF APPEAL
On December 14, 2003, Delores Lambert (complainant) filed an appeal
with this Commission from the November 7, 2003, final agency action
of the Social Security Administration (agency) implementing the EEOC
Administrative Judge's (AJ) decision finding no discrimination with regard
to her complaint of unlawful employment discrimination in violation
of 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; and the Age Discrimination in Employment Act of 1967, as amended,
29 U.S.C. � 621 et seq. The appeal is timely filed (see 29 C.F.R. �
1614.402(a)) and is accepted in accordance with 29 C.F.R. � 1614.405.
In her complaint, complainant claimed discrimination based on race
(Caucasian), sex (female), religion (Baptist), disability, age, and
reprisal for prior EEO activity with regard to harassment and various
terms and conditions of her employment, including assignment, appraisal,
compensatory time, non-selection, leave, and training. After 12 days
of hearings on 34 complaints with 184 issues, the AJ issued a decision
on September 16, 2003, finding that the agency did not discriminate
against complainant. The agency agreed to implement the AJ's decision.
In a Motion to Dismiss dated August 26, 2005, the agency informed the
Commission that complainant had filed a civil action (Civil Action
No. 3:04-CV-1235D) in the United States District Court for the Northern
District of Dallas on August 2, 2005. The record further discloses
that the claims raised therein are the same as those raised in the
instant complaints. The Commission's regulations provide that the
filing of a civil action "shall terminate Commission processing of
the appeal." 29 C.F.R. � 1614.409. Our regulations require dismissal
of an EEO complaint upon the filing of a civil action so as to prevent
a complainant from simultaneously pursuing both administrative and
judicial remedies on the same matters, wasting resources, 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
___10-21-05_______________
Date