01984523
06-29-1999
Amie L. Shaw, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Amie L. Shaw v. Department of the Air Force
01984523
June 29, 1999
Amie L. Shaw, )
Appellant, )
)
v. ) Appeal No. 01984523
) Agency No. AL900980575
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
______________________________)
DECISION
On May 16, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by her on April 25, 1998,
pertaining to her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. and �501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. �791 et seq. In her complaint, appellant alleged
that she was subjected to discrimination on the bases of race (Black),
color (Black), and physical disability (epilepsy) when:
On January 31, 1998, appellant's pay was stopped;
Subsequent to January 31, 1998, appellant was placed in an Absent
Without Leave (AWOL) status;
Subsequent to January 31, 1998, appellant's request for annual leave
was denied;
On an unspecified date, appellant was misled to believe that the agency
had Office of Personnel Management (OPM) approval to implement her
retirement; and
On an unspecified date, agency officials failed to comply with an
earlier Commission decision.
The agency dismissed appellant's complaint pursuant to EEOC Regulation
29 U.S.C. �1614.107(c), for raising matters that were the basis of a
pending civil action, identified as Civil Action No. 94-1287-CIV-ORL-22,
in the United States District Court for the Middle District of Florida,
Orlando Division, in which appellant was a party.
The record discloses that appellant filed a prior EEO complaint
challenging her separation from the agency in October 1989, and resulting
in her reinstatement in May 1992. Appellant was to be provided backpay
and other retroactive benefits upon her return. Appellant and the agency
disputed whether those benefits were conferred upon her, resulting in
appellant filing the above-referenced civil action. In December 1996,
a mediation session was held on the matter, and on December 23, 1996, the
parties signed a document entitled Settlement Memorandum (SM). The terms
of the SM provided, inter alia, that appellant agreed to retire upon
the entry of the Courts Final Order. Appellant immediately challenged
the validity of the SM, and a hearing was held by a magistrate judge to
determine whether the SM was valid. On December 9, 1997, the magistrate
judge issued a Report and Recommendation suggesting that the SM was valid,
and on January 1, 1998, the U.S. District Court judge issued an Order
accepting the magistrate judge's recommendation and dismissing appellant's
civil action. On January 14, 1998, appellant appealed the U.S. District
Court's decision to the U.S. Court of Appeals for the Eleventh Circuit.
EEOC Regulation 29 C.F.R. �1614.107(c) allows for the dismissal of a
complaint that is pending in a United States District Court in which
the complainant is a party. The purpose of this provision of the
regulations is 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).
In the present case, we find that the agency properly dismissed
appellant's complaint pursuant to 29 U.S.C. �1614.107(c). Allegations (4)
and (5) are identical to the matters raised in appellant's civil action.
Moreover, the agency actions which appellant challenges in allegations (1)
through (3) arose out of the agency's implementation of the SM, and are
therefore inextricably intertwined with the civil action. Based on the
foregoing, we find that the Commission lacks jurisdiction on these matters
and that dismissal was proper pursuant to 29 U.S.C. �1614.107(c).
Accordingly, the agency's decision to dismiss appellant's complaint is
AFFIRMED for the reasons set forth herein.
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. 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:
June 29, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations