01983372_r
06-23-1999
Barbara J. Owens, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Barbara J. Owens, )
Appellant, )
)
v. ) Appeal No. 01983372
) Agency Nos. 02-92-0183E
Louis Caldera, ) 02-93-0114E
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
On March 24, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) dated February 12, 1998, pertaining
to her complaints 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.<1> The agency consolidated the above-referenced complaints for
a single decision in accordance with 29 C.F.R. �1614.606.
The record discloses that on September 29, 1989, appellant filed a
formal complaint, identified as agency No. 91-11-0133 (Complaint 1),
alleging discrimination on the bases of race, color, and in reprisal
for prior EEO activity when she was not selected for promotion to a
GS-1102-11 Contract Administrator/Specialist position in July 1989.
After an investigation and hearing before an EEOC Administrative Judge
(AJ), the agency issued a decision adopting the AJ's finding of no
discrimination. Appellant appealed, and the Commission affirmed the
agency's final decision of no discrimination. Owens v. Department of the
Army, EEOC Appeal No. 01923856 (May 26, 1993), reconsideration denied,
EEOC Request No. 05930725 (January 21, 1994).
Appellant filed the instant complaints, identified as Agency
Nos. 02-92-183E and 02-93-114E (Complaints 2 and 3) on March 18, 1992,
and December 30, 1992, respectively. Therein, appellant alleged that she
was subjected to discrimination on the bases of race (African-American),
color (Black), sex (female), and in reprisal for prior EEO activity when:
In January 1992, appellant was not selected for two temporary Contract
Administrator/Specialist, GS-1102-11 positions; and
In September 1992, she was not selected for the position of Contract
Administrator, GS-1102-11.
The record further discloses that on June 1, 1993, a hearing before an
EEOC Administrative Judge (AJ) was initiated for Complaint 2; however
no Recommended Decision (RD) was issued. On June 9, 1993, appellant
requested a hearing for Complaint 3.
On February 28, 1994, appellant filed a civil action, identified as Civil
Action No. IP94-432C, in the United States District Court for the Southern
District of Indiana, concerning her non-selection for promotion to a GS-11
position in July 1989. Therein, appellant specifically raised the matters
contained in Complaints 2 and 3 in paragraphs 24-29 of her civil action.
On March 12, 1994, the AJ issued a Show Cause Order to determine whether
Complaints 2 and 3 should be remanded to the agency for dismissal, due
to their inclusion in appellant's civil suit. On March 23, 1994, and
in response to the Show Cause Order, appellant, through her attorney,
filed a motion to file an amended complaint in the U.S. District Court.
In paragraphs 23 and 24 of the amended complaint, appellant specifically
requested withdrawal of Complaints 2 and 3 from the civil action so
that she could pursue her administrative remedies under 29 C.F.R. �1614.
Notwithstanding the paragraphs requesting the withdrawal of Complaints
2 and 3 from the civil action, the amended complaint still contained
language referencing continuing discrimination in being denied a promotion
to the GS-ll grade. A copy of the amended complaint was sent to the
AJ within the allotted time for comments to be submitted on the Show
Cause Order.
On March 25, 1994, the District Court issued an order granting appellant's
motion to file an amended complaint.
On March 28, 1994, the AJ, finding that neither party established
good cause why the Commission should not terminate the administrative
processing of Complaints 2 and 3, remanded them to the agency with a
recommendation that they be dismissed pursuant to 29 C.F.R. �1614.107(c).
The AJ found that because the amended complaint continued to allege
unlawful discrimination on a continuous basis in the denial of a GS-11
promotion, Complaints 2 and 3 were still encompassed by the amended
civil action. Accordingly, the AJ concluded that dismissal pursuant to
29 C.F.R. �1614.107(c) was proper.
On April 25, 1995, judgment was entered for Civil Action No. IP94-432C,
dismissing it with prejudice.
On February 12, 1998, the agency dismissed both complaints pursuant to
EEOC Regulation 29 C.F.R. �1614.107(c), for stating the same claims that
were the subject of Civil Action No. IP94-432C.
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. Commission regulations mandate dismissal of the
EEO complaint under these circumstances so as to prevent a complainant
from simultaneously pursuing both administrative and judicial remedies
on the same matters, wasting resources, creating the potential for
inconsistent or conflicting decisions, and in order to grant due deference
to the authority of the federal district court. See Everett v. Department
of the Army, EEOC Request No. 05930234 (August 5, 1993)(citing 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 dismissal pursuant to 29
C.F.R. �1614.107(c) was improper. Although appellant included language in
her civil action asserting �continuous discrimination� with respect to the
agency's failure to promote her to a GS-11 position, we do not find that
language sufficient to encompass Complaints 2 and 3. We initially note
that it is well-settled that the denial of a promotion is a discrete
incident that has the degree of permanence which should trigger an
employee's duty to assert his rights. See Anvari v. Department of Health
and Human Services, EEOC Request No. 05930157 (June 17, 1993)(finding so
within the context of a continuing violation analysis). Moreover, as
noted by the agency, the proper inquiry to determine whether dismissal
is warranted is whether the issues in the EEO complaint and the civil
action are the same, that is, whether the acts of alleged discrimination
are identical. Bellow v. U.S. Postal Service, EEOC Request No. 05890913
(November 27, 1989). The factual allegations, then, and not the bases
or the precise relief requested should be the crux of the legal analysis
under these circumstances.
In the present case, the non-selections identified in Complaints 2
and 3 are distinct from the non-selection specifically identified in
appellant's civil action. We acknowledge that appellant included language
alleging �continuous discrimination� concerning her non-selections for
GS-11 positions, but we find that language insufficient to embrace
the allegations raised in Complaints 2 and 3. Taking the agency's
position to its logical conclusion, appellant would be prohibited from
ever filing an EEO complaint concerning the denial of a promotion to the
GS-11 grade level, because she included language identifying �continuous
discrimination.� Moreover, appellant specifically withdrew Complaints
2 and 3 from her civil action, effectively eliminating consideration
of those issues in that forum. Based on the foregoing, we find that
the agency improperly dismissed the allegations in Complaints 2 and 3
pursuant to 29 C.F.R. �1614.107(c).
Accordingly, the agency's decision to dismiss the allegations in
Complaints 2 and 3 is hereby REVERSED. The allegations are REMANDED to
the agency for further processing in accordance with this decision and
the Order below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (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. �1614.604(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:
June 23, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
1The agency was unable to supply a copy of a certified mail return
receipt or any other material capable of establishing the date
appellant received the agency's final decision. Accordingly,
since the agency failed to submit evidence of the date of receipt,
the Commission presumes that appellant's appeal was filed within
thirty (30) days of receipt of the agency's final decision. See,
29 C.F.R. �1614.402.