07a00020
07-27-2000
John R. Jones, Complainant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.
John R. Jones v. Department of the Air Force
07A00020
July 27, 2000
John R. Jones, )
Complainant, )
)
v. ) Appeal No. 07A00020
) Agency No. AR000000260
F. Whitten Peters, ) Hearing No. 110-99-8128X
Secretary, )
Department of the Air Force, )
Agency. )
______________________________________)
DECISION
INTRODUCTION
The agency timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the decision of the EEOC administrative judge
concerning complainant's equal employment opportunity (EEO) complaint,
which alleged discrimination in violation of the Rehabilitation Act of
1973, as amended, 29 U.S.C. � 791 et seq. The appeal is accepted by
the Commission in accordance with the provisions of 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue presented is whether the filing of a civil action by complainant
has ended the administrative processing of his EEO complaint.
BACKGROUND
On May 22, 1998, complainant, a �term employee� with the agency, filed
a formal EEO complaint alleging that the agency discriminated against
him based on physical disability when, on or about February 13, 1998,
he learned that had not been selected for a permanent position with the
agency. The complaint was heard before an EEOC administrative judge
(AJ). On November 10, 1999, the AJ issued a decision (AJ decision)
finding discrimination. However, on November 1, 1999, complainant
filed a civil action in the United States District Court for the
Middle District of Georgia (Civil Action No. 5:99-CV-430-1, pending).
The complaint stated, in relevant part, that the discrimination alleged
occurred on or about �December 1997 and continuing.� In the portion of
the civil action form provided for the complainant to state �[t]he nature
of my complaint, i.e., the manner in which the individual(s) named above
[responsible management officials] discriminated against me in terms of
the conditions of my employment,� complainant stated, in relevant part:
In the fall of 1997 plaintiff [complainant] applied for a permanent
position with the defendant [agency]. Plaintiff was nonselected by
the defendant for permanent employment and defendant cited in a letter
dated February 13, 1998 to plaintiff's Congressman that �Mr. Jones was
nonselected by management officials due to physical limitations.�
There is no indication in the record that complainant informed the AJ
of the existence of the civil action, nor is it readily apparent on what
date the agency was served with the civil action.
Subsequent to the November 10, 1999, AJ decision, the AJ held a hearing
with regard to remedies, and awarded relief including placement in the
position for which complainant had been nonselected and compensatory
damages. This AJ decision was revised several times, with the final
version being received by the agency on February 28, 2000.
On March 10, 2000, the agency issued a final agency action informing
complainant that it would not fully implement the AJ decision. On March
16, 2000, the agency filed the instant appeal, arguing among other points
that the AJ's jurisdiction over the case had been terminated on November
1, 1999, by the filing of the civil action.
In his response to the agency's appeal, complainant argues, in relevant
part, that the non-selection at issue below was not included in the
civil action. Rather, complainant maintains that the civil action was
intended to address the matter of the agency having placed complainant
on enforced leave in June 1998, and that the civil action was filed
after the Merit Systems Protection Board (MSPB) denied his appeal of
that action and issued him a �right to sue� letter.<1>
ANALYSIS AND FINDINGS
The Commission's regulations provide, in relevant part, that a
complainant may file a civil action in United States District Court
after 180 days from the date of filing an individual complaint if an
appeal has not been filed and a final decision has not been issued.
64 Fed. Reg. 37,644, 37659 (1999) (to be codified at 29 C.F.R. �
1614.407(b)). The regulations further provide, in relevant part, that an
agency shall dismiss a complaint �[t]hat 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 ....� 64 Fed. Reg. at 37 656 (to be codified at
29 C.F.R. � 1614.107(a)(3)). The regulations extend to AJs the authority
to dismiss such complaints. 64 Fed. Reg. at 37,657 (to be codified at
29 C.F.R. � 1614.109(b)). The regulations additionally provide that
filing a civil action ends the jurisdiction of the Commission over a
complaint filed in the administrative process. 64 Fed. Reg at 37,659
(to be codified at 29 C.F.R. � 1614.409. It is clear, then, that the
filing of a civil action encompassing the same issue or issues raised
in an administrative complaint terminates the administrative process.
In the instant case, nine days prior to the date on which the AJ issued
his finding of discrimination, complainant filed a civil action citing, as
one of the agency's offenses for which relief was sought, the nonselection
of which complainant was apprised in February 1998. Complainant argues
on appeal that the nonselection is not at issue in the civil action,
which he maintains was filed pursuant to a �right to sue� letter issued
by MSPB regarding a period of enforced leave which began in June 1998.
The Commission finds this argument unpersuasive. Complainant clearly
states in the civil action that the discrimination at issue therein began
in December 1997, and identifies the nonselection of which he was apprised
in February 1998 as one of the alleged discriminatory actions for which he
sought redress. The civil action was filed prior to the date on which the
AJ issued his finding of discrimination, terminating the administrative
processing of the EEO complaint regarding the non-selection. The agency
therefore is not obliged to implement the remedies awarded in the AJ
decision. The Commission notes, however, that should the non-selection
allegation be dismissed without prejudice from the civil action for
failure to exhaust administrative remedies, the agency shall so advise
the Commission and the instant appeal will be reinstated.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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. 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 (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:
July 27, 2000
DATE Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________________ ________________________
Equal Employment Assistant Date
1Complainant apparently refers to the October 6, 1999, Final Order issued
by the MSPB denying his petition for review of its decision on his appeal
of the enforced leave action.