01A41562_r
07-14-2004
Sherry J. Oshiver, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Sherry J. Oshiver v. Department of the Interior
01A41562
July 14, 2004
.
Sherry J. Oshiver,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A41562
Agency No. LLM-97-035
Hearing No. 100-98-7402X
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 7, 2003, dismissing 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.
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. In her complaint, complainant alleged that she
was subjected to discrimination on the bases of sex (female), religion
(Jewish), age (45), and reprisal for prior EEO activity when:
The agency failed to extend her term appointment; and
The agency denied her the opportunity to apply for term positions and
did not select her for term positions.
The record reveals that complainant's complaint was pending before an EEOC
Administrative Judge (AJ) who issued an Order of Dismissal on October 20,
2003, dismissing complainant's complaint for raising the same matters
that are the subject of a consolidated pending civil action under civil
action numbers: 00CV2284, 00-2935, 01CV1893. Thereafter, on November
9, 2003, the agency dismissed complainant's complaint pursuant to 29
C.F.R. � 1614.107(a)(3), on the grounds that complainant filed a civil
action on the same matter.
On September 25, 2000, complainant filed a civil action (identified
as Civil Action No. 1:00CV02284) in the United States District Court
for the District of Columbia. The record further discloses that
complainant raised the issues of her termination from the agency; the
denial of the opportunity to apply for employment; and the failure of the
agency to hire her in both the civil action and the present 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. 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). Thus, upon review of the
record we find that the agency properly dismissed complainant's complaint
for raising the same matter that is the basis of a civil action.
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
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 14, 2004
__________________
Date