01984045
04-29-1999
Billie R. McCoy, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Billie R. McCoy v. Department of Veterans Affairs
01984045
April 29, 1999
Billie R. McCoy, )
Appellant, )
)
v. ) Appeal No. 01984045
) Agency No. 97-1936
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
The Commission finds that the agency's March 18, 1998 decision dismissing
appellant's complaint on the basis that the complaint is the basis of
a pending action in the United States District Court, is not proper
pursuant to 29 C.F.R. �1614.107(c).
The record shows that appellant filed a formal complaint of discrimination
in April 1997, alleging that she had been discriminated against on
the basis of sex (female) when: (a) she was subjected to harassment;
(b) she was suspended; and, (c) she was subjected to reprisal.
On October 7, 1997, appellant filed a civil action against the Prescott
Veterans Administration Medical Center, in the United States District
Court for the District of Arizona, in which she alleged that "the
defendants had engaged in discrimination against her, wrongfully
terminated her employment and did not support just EEO proceedings and
other proceedings".
The agency issued a final decision dismissing the complaint on the grounds
that it was the basis of a civil action. On appeal, appellant contends
that although she filed a civil action "in regard to EEO Case 97-1936
... it was not filed naming the head of the [agency] as the defendant".
Appellant further alleged that the civil action had "since been dismissed,
without prejudice, at [her] request".
The Commission has consistently held that where a civil action is
dismissed without prejudice and the Commission has not issued a final
ruling, a complaint may be reinstated in the administrative process.
Ritenour v. Tennessee Valley Authority, EEOC Request No. 05960650 (June
5, 1998).
A review of the record shows that notwithstanding appellant's
contentions on appeal, she has not provided a copy of the court's order
dismissing her civil action without prejudice. Without it, we cannot
make a determination that her complaint should be reinstated in the
administrative process, nor can we order the agency to do so.
Based on the record, we find that the complaint was improperly dismissed
on the grounds that it was the basis of a civil action in U.S. District
Court. Accordingly, the agency's decision dismissing the complaint
is VACATED. The complaint is REMANDED for a supplemental investigation
as ordered below.
ORDER
The agency is ORDERED to conduct a supplemental investigation to inquire
if appellant's civil action was in fact dismissed without prejudice.
The agency shall support its finding with appropriate evidence. Within
sixty (60) days of the date of this decision becoming final, the agency
shall either issue a FAD dismissing the complaint or accept the complaint
for processing. A copy of the final decision or notice of processing
must be submitted to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. 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.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
April 29, 1999 Ronnie Blumenthal, Director
DATE Office of Federal Operations