01A13804_r
04-03-2002
Iolanda B. Gordon, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Iolanda B. Gordon v. Department of the Air Force
01A13804
April 3, 2002
.
Iolanda B. Gordon,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A13804
Agency No. PVIL98003
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated April 25, 2001, dismissing her complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.
The record reflects that complainant filed a formal complaint in
April 1998, alleging that she was the victim of unlawful employment
discrimination on the basis of disability. Specifically, complainant
alleged that:
1. On March 1, 1996, she was not given consideration to perform light
duties because of a foot fracture and a back problem; and
2. Complainant was called into the office by a supervisor and told that
she was being placed on administrative leave for a day; and she was given
a copy of her 971, which included a statement that she could not return
to work until she could perform her job without limitations.
In a final decision dated May 20, 1998, the agency dismissed claim 1
on the grounds that the matter raised therein had been addressed in
a previously filed grievance; and dismissed claim 2 on the grounds
that this matter was not raised with an EEO Counselor. On appeal,
the Commission affirmed the agency's decision to dismiss claim 1.
However, the Commission reversed the agency's decision to dismiss
claim 2, and remanded this claim to the agency for further processing.
Gordon v. Department of the Air Force, EEOC Appeal No. 01985246 (February
10, 2000).<1>
In a final decision dated April 25, 2001, the agency dismissed claim 2
pursuant to 29 C.F.R. �1614.107(a)(3), stating the agency had received
documentation verifying that the same claim was the subject of a
civil action, case number 5:00-CV-333-F2) filed May 11, 2000, in the
U.S. District Court for the Eastern District of North Carolina, Western
Division.
On appeal, complainant provides documentation showing the civil action
was dismissed without prejudice on November 17, 2000.
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.
The record in this case reflects that the claims raised in the civil
complaint filed by complainant on May 11, 2000(as identified in
paragraphs 11 and 30) encompass the remaining claim at issue on appeal.
However, the copy of the District Court document submitted by complainant
on appeal reflects that the civil action was dismissed without prejudice.
As the District Court dismissed the civil action without prejudice,
complainant's administrative EEO complaint should be processed since
the same matter is not pending in any other forum.
Accordingly, the agency's dismissal of claim 2 is REVERSED. Claim 2
is REMANDED to the agency for further processing in accordance with the
ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim 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 (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
April 3, 2002
__________________
Date
1The record contains no evidence reflecting that complainant filed a
request to reconsider the Commission's decision of February 10, 2000.