Phyllis A. Dudley, Complainant,v.Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJan 29, 2001
01990582 (E.E.O.C. Jan. 29, 2001)

01990582

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

01990582

January 29, 2001

.

Phyllis A. Dudley,

Complainant,

v.

Gregory R. Dahlberg,

Acting Secretary,

Department of the Army,

Agency.

Appeal No. 01990582

Agency No. BPARFO9804I0770

DECISION

Complainant filed a timely appeal with this Commission from an agency

decision pertaining to her complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964 (Title VII),

as amended, 42 U.S.C. � 2000e et seq.<1> The Commission accepts the

appeal in accordance with 29 C.F.R. �1614.405.

Complainant filed a formal complaint, dated April 13, 1998, regarding

claims of discrimination based on reprisal. The agency framed the claims

as follows:

Mr. N used his regular DCSDOC e-mail distribution list to send out a

New Years greeting via e-mail addressed to individuals on the list but

deleted complainant's name;

(b) Mr. N fail to resolve to complainant's satisfaction, concerns raised

about comments Ms. T made to complainant on January 16, 1998, about Future

Battle Directorate travel actions and comments Mr. H made to complainant

on February 2, 1998 about procedures to request toner cartridges;

Mr. N fail to provide documentation complainant requested on September

26, 1997, on award recipients; and,

Brigadier General B failed to remove Mr. N as complainant's senior rater.

On September 28, 1998 the agency issued a decision dismissing the

complaint on the grounds that it is the basis of a pending civil action

in the United States District Court for the Eastern District of Virginia,

filed on July 8, 1998. An amendment to the civil action was filed on

September 4, 1998.

The regulation set forth at 29 C.F.R. � 1614.107(a)(3) 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, 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 Shapiro v. Department of the Army, EEOC Request No. 05950740 (October

10, 1996); Stromgren v. Department of Veterans Affairs, EEOC Request

No. 05891079 (May 7, 1990); Kotwitz v. United States Postal Service,

EEOC Request No. 05880114 (October 25, 1988).

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 (Title VII),

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 promotion to GS-13 and above. The record

indicates that complainant is a GS-0318-6 Secretary and therefore not

a member of the class. Therefore, we find that complainant is not a

plaintiff in the civil action cited by the agency, and 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.