01A41510
04-06-2004
Agency.
Clifford Herron v. U.S. Department of Agriculture
01A41510
April 6, 2004
.
Clifford Herron, et. al
Class Agent,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A41510
Agency No. 97-1290
Hearing No. 100-98-7120X
DECISION
The agency filed a timely appeal with this Commission contesting the
EEOC Administrative Judge's decision to dismiss the complaint without
prejudice, because an action was filed in the United States District
Court. The action before the Commission concerns a class complaint
filed on behalf of African American employees of the Farm Services Agency
alleging discriminatory non-selection to positions at the GS-13, 14 and
15 levels. The appeal is accepted pursuant to
29 C.F.R. �1614.405.
Procedurally, on September 27, 2002, the Commission remanded this
matter to the Administrative Judge for further proceedings related to
obtaining a proper statistical analysis. According to the record on
appeal, the parties engaged in settlement discussions. On April 4, 2003,
complainant filed a civil action (identified as Civil Action 03-0841)
in the United States District Court for the District of Columbia seeking
enforcement of a settlement agreement. The AJ considered the parties
requests for dismissal and granted the dismissal without prejudice under
29 C.F.R. �1614.107(a)(3), 1614. 109(b) and 1614.409.<1>
Our regulations provide that the filing of a civil action �shall
terminate Commission processing of the appeal.� 29 C.F.R. � 1614.409.
In that instance, the Commission will dismiss the complaint.
The agency argues that the AJ's dismissal in the case �without prejudice�
was in error because it leaves open the possibility that the class
could later pursue a remedy at EEOC if the court finds against it.
The agency also contends that to do so would result in a waste of
resources, and that if the class were allowed to return to EEOC, the
class could receive double recovery.
The class agents opposed the agency's appeal and responded that since the
agency's filing of its appeal, the District Court dismissed the action
without prejudice on the grounds that the class failed to exhaust its
administrative remedies.
Dismissal with prejudice constitutes a final judgment on the merits of
the case and bars relitigation of any subsequent action involving the
same parties and claims under the doctrine of res judicata. Conway
v. Department of the Army, EEOC Request No. 05981007 (Dec. 1, 1989).
See 9 C. Wright and A. Miller, Federal Practice and Procedure 2364,
at 163 (1971).
Applying this principle, the Commission has been given no evidence
that the AJ's determination was a decision on the merits of the case
such that she should have dismissed the case with prejudice. Instead,
it is undisputed that the only issue considered was the posture of the
case in light of the pending civil action. For that reason, we find
the AJ's dismissal without prejudice was correct.
Moreover, the agency's concern about the class' misuse of the
administrative process, having to defend this action in dual forums or
the possibility of dual remedies is misplaced. Were the Commission to
discern that this complainant was engaged in a campaign of forum switching
for a purpose other than the legitimate pursuit of an EEO claim, the
Commission has the inherent authority to protect the integrity of the EEO
administrative process through regulations designed to address such abuse.
The instances in which the Commission finds abuse of process are rare,
because of the strong policy in favor of preserving a complainant's
EEO rights whenever possible. See Haralson v. Department of Defense,
EEOC Request No. 05960849 (Mar. 25, 1998).
This is also reflected in the Commission's well-settled holding that
where a civil action is dismissed without prejudice and the Commission
has not issued a final ruling, a complaint may be reinstated and the
administrative process is reopened. Ritenour v. Tennessee Valley
Authority, EEOC Request No. 05960650 (June 5, 1998); Roy v. Department
of the Navy, EEOC Request No. 05960854 (January 31, 1997).
For these reasons, the agency's final action is reversed and the decision
of the Administrative Judge of dismissal without prejudice is sustained.
The parties are directed to comply with the Order below.
ORDER
This matter is remanded to the Administrative Judge in the Hearings
Unit of the Washington Field Office for further proceedings.
As there are issues related to the parties proposed settlement
agreement which is a matter required to be reviewed by the AJ under 29
C.F.R. �1614.204(g)(4) the agency is directed to forward a copy of the
complaint and investigative file to the AJ within 15 days of the date
this order becomes final. The agency will issue a report of compliance
as indicated below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. 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
April 6, 2004
__________________
Date
1The AJ considered the agency's Motion
for Reconsideration requesting dismissal with prejudice, but denied
the motion. Decision dated October 31, 2003.