01983110
05-17-1999
Martha A. Edwards, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Martha A. Edwards v. Department of the Air Force
01983110
May 17, 1999
Martha A. Edwards, )
Appellant, )
)
v. ) Appeal No. 01983110
) Agency No. BB965019000
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated February 24, 1998, which the agency issued pursuant
to EEOC Regulation 29 C.F.R. �1614.107(a). The Commission accepts the
appellant's appeal in accordance with EEOC Order No. 960, as amended.
The appellant initially filed her EEO complaint on December 27, 1994,
raising seven allegations of discrimination based on her race (Black).
Thereafter, the agency dismissed the appellant's complaint. On appeal,
the Commission affirmed the dismissal of allegations 2 and 6 and reversed
the dismissal of allegations 1, 3, 4, 5, and 7. Edwards v. Department
of the Air Force, EEOC Appeal No. 01952362 (August 21, 1995).
Following an agency investigation on remand, the agency issued a second
final agency decision dismissing allegations concerning the alleged false
job description (allegation 1), the change in work hours (allegation
3) and the appellant's work assignments (allegations 4 and 5) on the
ground that the appellant had filed a civil action in a U.S. District
Court concerning those issues. The decision indicated that allegation 7
(failure to be considered for a child care position) would be assigned
a new agency base docket number (BB965019000) and the matter referred
to the Commission for a hearing.
The agency subsequently sought enforcement of its discovery request
and sanctions for the appellant's purported failure to provide adequate
responses to interrogatories concerning the child care issue. Therein,
the appellant had responded in part that the subject of her complaint was
discrimination, not a child care job. She also indicated that she was no
longer interested in any job opening at the agency. The appellant wrote
the Administrative Judge on November 17, 1997, asking that the complaint
not be dismissed because she could not answer questions about a childcare
position that she never had applied for. The appellant indicated that
the agency was creating an issue to get away from the real issue which
was did discrimination, retaliation, and sexual harassment take place
in Nutrition Med on the Barksdale Air Force Base.
The Administrative Judge issued an Order of Remand wherein he indicated,
among other things, that the appellant had advised him that she did not
want to hear further from him about her being denied a job by the agency.
The Administrative Judge found that since that was the only issue pending
before him, he remanded the issue to the agency for dismissal for failure
to cooperate and/or failure to state a claim. The Administrative Judge
indicated that the appellant's other discrimination claims were left to
be resolved in the suit which she filed in Federal District Court.
On appeal, the appellant contends that she did not know that the person
she was talking with in the December 16, 1997 conference call was the
real Administrative Judge. She also contends that if the agency had
wanted to give her a job it could have done so when she first complained
to the Personnel Office. She further asks why she should have to answer
questions that she felt were not relevant to the complaint. The appellant
presents additional contentions concerning alleged discrimination and
retaliation, including that she has been unable to obtain employment
due to her former supervisor's animosity toward her.
Based on the appellant's responses to the agency's interrogatories,
her November 17, 1997 letter to the Administrative Judge, and her appeal
submission, the Commission concludes that the appellant has abandoned any
claim regarding the child care position. Since that is the only claim
included in agency base docket number (BB965019000), the Commission
finds that the agency correctly dismissed agency base docket number
(BB965019000).
It appears that the issues which the appellant wants adjudicated were
raised in her civil action or, possibly, in other EEO complaints still
pending before the agency. However, if the appellant has not already
contacted an EEO counselor regarding the allegedly discriminatory and
retaliatory information being given to potential employers, she should
do so within 45 days of her receipt of this decision. The agency should
treat the date of the appellant's appeal, March 9, 1998, as the date
of the appellant's request for counseling on this issue if she did not
contact the agency on an earlier date.
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of allegation 7 (failure to be considered for a child care
position).
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. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
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. 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 (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:
May 17, 1999
Date Carlton M. Hadden, Acting Director
Office of Federal Operations