01990583
01-29-2001
Phyllis A. Dudley, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.
Phyllis A. Dudley v. Department of the Army
01990583
January 29, 2001
.
Phyllis A. Dudley,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01990583
Agency No. BPARFO9806I0990
DECISION
On October 27, 1998, complainant filed a timely appeal with this
Commission from an agency decision, dated September 28, 1998, dismissing
her complaint on the grounds that it raises the same matters that are
pending in a civil action in a U.S. District Court.<1> Accordingly,
the Commission accepts the appeal in accordance with EEOC Order No. 960,
as amended.
Complainant filed a formal complaint, dated June 16, 1998, regarding
claims of discrimination based on reprisal. Specifically, complainant
claimed that she was discriminated against when two agency officials
used their positions in the selection process of job vacancy I-77-97 in
reprisal for her naming them as Principal Agency Witnesses in her prior
EEO complaints.
The agency dismissed complainant's complaint on the ground that
complainant filed a civil action in the United District Court for the
Eastern District of Virginia on July 8, 1998, based on the allegations
in complainant's EEO complaint. An amendment to the civil action was
filed on September 4, 1998.
On appeal, complainant's attorney argues that complainant has not filed
a civil action in District Court. He contends that the civil action
referred to by the agency is a class action regarding employees at grades
GS 9-12 who have been denied an opportunity to a promotion to GS-13.
According to complainant's attorney, complainant is a GS-6 and not a
member of the class.
In response, the agency contends that complainant's complaint is one of
the same allegations in the pending civil action. The agency points
to portions of the amended complaint where the class alleges that the
agency discriminated against employees that joined or supported the 1996
class complaint.
EEOC Regulation at 29 C.F.R. � 1614.107(a)(3) provides that an agency
shall dismiss a complaint or a portion of a complaint that is the basis
of a pending civil action in a United States District Court in which
the complainant is a party provided that at least 180 days have passed
since the filing of the administrative complaint, or that was the basis
of a civil action decided by a United States District Court in which the
complainant was a party. The purpose of this regulation, and of EEOC
Regulation 29 C.F.R. � 1614.409 which provides that the filing of a civil
action shall terminate the Commission's processing of an appeal, is to
prevent a complainant from simultaneously pursuing both administrative
and judicial remedies on the same matters and, thereby, wasting resources
and creating the potential for inconsistent or conflicting decisions.
See Shapiro v. Department of the Army, EEOC Request No. 05950740 (October
10, 1996), and decisions cited therein.
The record reveals that, on September 4, 1998 an amended class action
complaint (Civil Action No. 98-975-A) was filed in the United States
District Court for the Eastern District of Virginia. It alleged
violations of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The plaintiff class is identified as former
and current black employees who were in grades GS 9-12 and have been
denied the opportunity for a promotion to a position at GS-13 and above.
Complainant contends that, as a GS-6, she is not a member of the class.
The record reflects that complainant is an agency Secretary, GS-0318-06,
and is not a plaintiff in the civil action. The complaint was improperly
dismissed by the agency. Accordingly, the agency's decision dismissing
the complaint is REVERSED. The complaint is REMANDED to the agency for
further processing in accordance with this decision and the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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)(Supp. V 1993). 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 (M0900)
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 (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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
January 29, 2001
__________________
Date
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.