01A24128_r
10-22-2002
Sabrina Skeldon, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Sabrina Skeldon v. Department of Justice
01A24128
October 22, 2002
.
Sabrina Skeldon,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A24128
Agency No. A-99-1025
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated September 10, 2001, dismissing 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. In her
complaint, complainant alleged that she was subjected to discrimination on
the bases of sex, religion, and in reprisal for prior EEO activity when:
Complainant was counseled by her supervisor on February 11, 1999,
and told she would not be assigned to additional health care fraud
cases until she exhibited self-control and objective demeanor, that
her relationships with co-workers need to improve, and regarding the
following of her supervisor's instructions. The counseling was reduced
to a memorandum dated February 19, 1999.
The agency has refused, since December 5, 1998, to remove a letter of
recommended termination, dated December 17, 1997.
In December 1998, complainant was not selected for a position as an
Assistant U.S. Attorney for the Eastern District of Pennsylvania.
Complainant was forced to resign her position as an Assistant United
States Attorney in April 2000.
In a final decision dated June 25, 2002, the agency dismissed
complainant's complaint (claims 1, 2, and 4) pursuant to 29 C.F.R. �
1614.107(a)(3), finding that complainant filed a civil action (identified
as Civil Action No. CV-99-1177 LO) in the United States District Court
for the Western District of Louisiana which had as its basis, the same
allegations as her EEO complaint.<1>
On appeal, complainant contends that claim 4 (constructive discharge)
was never a part of her civil action and that while complainant received
a jury verdict and judgment award based on discriminatory harassment,
she has not recovered for her claim that she was forced to resign her
position in April 2000. Complainant concedes that claims 1 and 2 were
subsumed by her civil action.
On appeal, the agency contends that claim 4 arises from the same facts
set forth in her civil action and accordingly, as complainant could
have amended her civil action to include claim 4, she should be barred
from pursuing claim 4 administratively. In support, the agency cites
the Commission's decision in Ashford v. EEOC, EEOC Appeal No. 01945510
(February 24, 1995), which holds that the proper inquiry is whether
the acts of alleged discrimination in the EEO complaint and the civil
action, are identical, not whether the alleged bases of discrimination
are identical.
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. We do not find that claim
4 is inextricably intertwined with the claims raised in complainant's
civil complaint such that claim 4 cannot be severed from the civil
action. Unlike the circumstances in Ashford, supra, we find that
the facts surrounding complainant's alleged constructive discharge
were not pled in her civil action. Significantly, we note that the
basis of complainant's civil action is a series of incidents which
occurred primarily from the time she was hired by the agency through
the end of 1998, while complainant did not resign her position until
April 2000. While some of the same incidents may serve as background
evidence precipitating complainant's resignation, nothing in the record
indicates complainant's alleged constructive discharge was considered in
the disposition of complainant's civil action. Accordingly, we find that
the agency's dismissal of claim 4 pursuant to 29 C.F.R. � 1614.107(a)(3)
is improper.<2>
We therefore AFFIRM the agency's dismissal of claims 1 and 2. We REVERSE
the agency's dismissal of claim 4 and we REMAND claim 4 to the agency
for further processing as directed herein.
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 (K0501)
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)
(1994 & Supp. IV 1999). 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 (M0701)
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 22, 2002
__________________
Date
1The record confirms that complainant withdrew
claim 3.
2The Commission does not address an alternative ground for dismissal
raised by the agency for the first time on appeal. Complainant was
not given an opportunity to contest such a reason for dismissal of
her complaint.