01A32494
09-15-2004
Lue V. Sanders, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Lue V. Sanders v. Department of the Treasury
01A32494
September 15, 2004
.
Lue V. Sanders,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A32494
Agency Nos. TD-98-2179, 00-2007, 00-2058, 00-2152, & 01-2087M
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 5, 2003, dismissing her complaints 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. In her complaints,
complainant alleged that the agency discriminated against her on the
bases of race (African-American), national origin (African-American), sex
(female), disability (Depression, neck and back injuries, Fibromyalgia,
Myafascial Pain Syndrome, Temporomandibular Joint Syndrome), age (over
40), and reprisal for prior EEO activity when (1) in April 1998, it
failed to provide her with a reasonable accommodation, (2) in March 1998,
it rated her as less than �Fully Successful� on her mid-year performance
appraisal (3) in April 1998, it rated her as less than �Fully Successful�
on her annual performance appraisal, (4) in August 1999, it charged her
with leave without pay, (5) in September 1999, it rated her as �Fully
Successful� on her annual appraisal, (5) in January 2000, it issued her
a letter of counseling, (6) it constructively discharged complainant
when it forced her to retire on July 28, 2000, and (7) it harassed her
and created a hostile work environment.
In opposition to complainant's appeal, the agency states that complainant
filed the five underlying complaints before she filed a civil action in
U.S. District Court on September 27, 2001. Further, the agency stated
that the Court's dismissal of complainant's civil action was based on
her failure
to timely respond rather than failure to exhaust administrative remedies.
The agency contends that complainant's civil action was dismissed with
prejudice.
The record reveals that, on September 27, 2001, complainant filed a civil
action (identified as Civil Action No. 01-CV-7538) in the United States
District Court for the Southern District of Florida (Fort Lauderdale).
The record discloses further that the claims raised encompass those raised
in agency numbers TD-00-2007, 00-2058, 00-2152, 01-2087M and claims (2)
and (3) of TD-98-2179. The civil action does not specifically cite
failure to provide a reasonable accommodation, which was claimed in
agency number TD-98-2179 and we cite as claim (1).
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. USPS, EEOC
Request No. 05880114 (October 25, 1988). Accordingly, complainant's
appeal as it pertains to agency numbers TD-00-2007, 00-2058, 00-2152,
and 01-2087M is hereby dismissed because the matters were previously
adjudicated and thus are res judicata. See 29 C.F.R. � 1614.409.
Further, complainant's appeal as to agency number TD-98-2179 is dismissed
because the reasonable accommodation claim was available to complainant
when she filed Civil Action No. 01-CV-7538 and the two remaining claims
were encompassed by the claims raised in her civil action. The claims
of agency number TD-98-2179 are precluded as well.
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 15, 2004
__________________
Date