01A02631
07-06-2000
Marilyn L. Ferguson, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.
Marilyn L. Ferguson v. Department of Justice
01A02631
July 6, 2000
Marilyn L. Ferguson, )
Complainant, )
)
v. ) Appeal No. 01A02631
) Agency No. F974965
Janet Reno, )
Attorney General, )
Department of Justice, )
Agency. )
____________________________________)
DISMISSAL OF APPEAL
On February 22, 2000, complainant filed an appeal with this Commission
from the January 20, 2000 final agency action implementing the EEOC
Administrative Judge's (AJ) decision finding no discrimination.<1>
By letter dated March 23, 2000, complainant's attorney notified the
Commission that complainant would not be submitting a statement on appeal
because she had "instead opted to utilize alternative means of addressing
her claims through initiation of a civil action." 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified and hereinafter referred to as 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. 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).
Volume 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified and hereinafter
referred to as 29 C.F.R. �1614.407) provides that a complainant may file
a civil action in U.S. District Court after 180 days from the date of
filing an appeal with the Commission if there has been no final decision
by the Commission. The Commission notes that while complainant's civil
action was apparently filed prior to the expiration of the 180-day
period, this appeal should be dismissed in view of the Commission's
long-standing practice of conserving resources and avoiding the potential
for inconsistent or conflicting decisions. See Posey v. Department
of the Navy, EEOC Appeal No. 01951777 (September 21, 1995). If the
court dismisses complainant's civil action for premature filing, she
may request the Commission reinstate her appeal for further processing.
Accordingly, this appeal is hereby DISMISSED. See 29 C.F.R. �1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
July 6, 2000
________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.