0120100354
12-09-2010
Magda Pizzini, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Transportation Security Administration), Agency.
Magda Pizzini,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Transportation Security Administration),
Agency.
Appeal No. 0120100354
Hearing No. 510-2008-00402X
Agency No. HS08TSA002064
DISMISSAL OF APPEAL
Complainant filed an appeal with this Commission from the final Agency
action finding no discrimination with regard to 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. In her
complaint, Complainant alleged that the Agency subjected her to a hostile
work environment on the bases of race (Hispanic) and national origin
(Puerto Rican) when:
1. On December 3, 2007, she was directed by the Assistant to the Special
Agent in Charge (ATSAC) to falsify a mileage report;
2. On December 5, 2007, the Administrative Officer (AO) recommended that
her fleet management duties be taken away from her;
3. In January 2007, ATSAC assigned her the task of going outside to the
parking lot to take mileage from all operations vehicles and to check
for paper and trash inside the vehicles;
4. On August 20, 2007, ATSAC called Complainant into his office and told
her the next time she does not follow instruction, he was going to write
her up.
5. On December 7, 2007, AO got upset with Complainant, raised her voice
and stated that Complainant never understands people when they talk to
her and that Complainant never understands what she reads;
6. On December 7, 2007, AO expressed that she did not tell Complainant
that she would delete the sentence, “She can become frustrated with
those that fall short of her high standards” from Complainant’s
performance appraisal;
7. On February 1, 2008, AO informed Complainant that she would not
receive a step increase; and,
8. On March 24, 2008, Complainant was called into AO's office where
a Special Agent called her stupid and stated that she was nobody in
the office.
On August 18, 2010, Complainant filed a civil action (identified as
Civil Action No. 0:10-cv-61498) in the United States District Court
for the Southern District of Florida. 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
(Oct. 19, 1989); Kotwitz v. U.S. Postal Serv., EEOC Request No. 05880114
(Oct. 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 (Nov. 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
December 9, 2010
Date
2
0120100354
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120100354