05970031
03-04-1999
Georgia Maitland, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Georgia Maitland v. Department of the Army
05970031
March 4, 1999
Georgia Maitland, )
Appellant, )
) Request No. 05970031
v. ) Appeal No. 01956007
) Agency No. F09507F0250
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DISMISSAL
On October 11, 1996, the Department of the Army (hereinafter referred
to as the agency) timely initiated a request to the Equal Employment
Opportunity Commission (the Commission) to reconsider the decision in
Georgia Maitland v. Togo D. West, Jr., Secretary, Department of the Army,
EEOC Appeal No. 01956007 (September 24, 1996). EEOC regulations provide
that the Commissioners may, in their discretion, reconsider any previous
Commission decision. 29 C.F.R. �1614.407(a). The party requesting
reconsideration must submit written argument or evidence which tends to
establish one or more of the following three criteria: new and material
evidence is available that was not readily available when the previous
decision was issued, 29 C.F.R. �1614.407(c)(1); the previous decision
involved an erroneous interpretation of law, regulation, or material fact,
or a misapplication of established policy, 29 C.F.R. �1614.407(c)(2);
and the decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. �1614.407(c)(3).
On May 23, 1995, appellant, who the agency knew was represented by an
attorney, received notice of her right to file a formal complaint.
She, however, did not file her formal complaint until July 7, 1995.
The agency dismissed appellant's complaint on the grounds that it was
filed in an untimely manner. The previous decision vacated the dismissal,
because there was no evidence that appellant's attorney was ever provided
a copy of the notice.
The agency, in its request to reconsider (RTR), did not submit written
argument or evidence that established one or more of the criteria set
forth at 29 C.F.R. �1614.407(c); instead, the agency, for the first time,
indicated that on November 24, 1995, appellant was removed from federal
service, and that on December 19, 1995, she challenged her removal
by filing an appeal with the Merit Systems Protection Board (MSPB).
According to the agency, the issues raised in appellant's EEO complaint
are "inextricably" bound to the matters raised in her MSPB appeal.
A review of appellant's MSPB appeal indicates that in challenging her
removal, appellant discussed, in great detail, her working conditions at
the agency. In addition to changing her performance standards in March
1995, appellant maintained that the agency, without informing her of any
performance deficiencies, placed her on a Performance Improvement Plan in
April 1995. A review of appellant's formal EEO complaint reveals that
she also discussed her working conditions, the changes in her duties,
and the fact that she was placed on a Performance Improvement Plan.
In May 1998, the Commission was notified by the agency that appellant had
timely filed a civil action in the United States District Court for the
District of Maryland, Southern Division. A review of appellant's civil
complaint, Civil Action No. AW981166, indicates that it raised the same
issues that were set forth in her formal EEO complaint and MSPB appeal.
According to appellant's civil complaint, a MSPB Administrative Judge
issued an initial decision denying her appeal on February 3, 1997.
Appellant timely petitioned the full MSPB for review of the initial
decision. On March 17, 1998, however, appellant's petition was denied.
EEOC Regulation 29 C.F.R. �1614.410 provides that the filing of a
civil action under 29 C.F.R. �1614.408 or �1614.409 terminates all
Commission processing of an appeal. Since appellant has filed a civil
action regarding the same matters that are in her EEO complaint, we find
that she has elected to proceed in the Federal Court system. Therefore,
all processing of her administrative EEO complaint shall be terminated.
The agency is no longer required to comply with the Order set forth in
the previous decision.
STATEMENT OF RIGHTS
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil 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. 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.
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:
March 4, 1999
DATE Frances M. Hart
Executive Officer
Executive Secretariat