01972822
01-08-1999
James I. Watts, Appellant, v. Janet Reno, Attorney General, Department of Justice, Agency.
James I. Watts v. Department of Justice
01972822
January 8, 1999
James I. Watts, )
Appellant, )
)
v. ) Appeal No. 01972822
) Agency No. B-94-2158
Janet Reno, )
Attorney General, )
Department of Justice, )
Agency. )
______________________________)
DECISION
On February 18, 1997, appellant filed a timely appeal with this
Commission from a final agency decision (FAD) dated January 30, 1997,
pertaining to his complaints of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. In his complaints, appellant identified eight
(8) allegations of discrimination in reprisal for prior EEO activity.
One of the allegations included in appellant's complaints was whether
he was discriminated against in reprisal for prior EEO activity when on
April 19, 1995, he received a fully successful performance appraisal for
the rating period from April 1994, to March 1995, which appellant felt was
lower than he deserved (April 19, 1995 performance appraisal allegation).
The agency, pursuant to 29 C.F.R. �1614.606, consolidated appellant's
complaints for processing. On January 30, 1997, the agency issued a
FAD dismissing all eight of appellant's allegations pursuant to EEOC
Regulation 29 C.F.R. �1614.107(c), on the grounds that they were the
bases of a pending civil action, identified as Civil Action 94-2011,
which appellant filed on September 28, 1994, in the United States District
Court for the District of Columbia. With regard to the April 19, 1995
performance appraisal allegation, the agency determined that it was
directly related to the subject matter of appellant's civil action and
dismissal of that allegation was also found to be proper pursuant to 29
C.F.R. �1614.107(c).
The Commission notes that in paragraph (9) of appellant's civil action,
he alleged:
For and during the periods from December 1989 through March 31, 1990,
April 1, 1990 through March 31, 1991, April 1, 1991 through March 31,
1992, April 1, 1992 through March 31, 1993, and April 1, 1993 through
March 31, 1994 [the agency] inaccurately and unfairly rated [appellant's]
performance on the bases of race and reprisal.
As a preliminary matter, the Commission notes that appellant appealed only
the dismissal of the April 19, 1995 performance appraisal allegation.
Accordingly, the agency's decision to dismiss the seven (7) other
allegations in appellant's complaint is hereby AFFIRMED for the reasons
set forth herein.
EEOC Regulation 29 C.F.R. �1614.107(c) provides, in pertinent part,
that an agency shall dismiss a complaint, or portion thereof, that is
the basis of a pending civil action in a United States District Court
in which the complainant is a party. In the instant case, we find that
the agency erred in dismissing the April 19, 1995 performance appraisal
allegation, as we find that it was not included in appellant's civil
action. Paragraph (9) of appellant's civil action concerns only the
performance appraisals appellant received for the periods ending 1990
through 1994; it does not concern the performance appraisal for the period
ending 1995. Further, as the Commission has repeatedly found that the
receipt of a performance appraisal is a discrete event, we find that the
agency erred in finding that the April 19, 1995 performance appraisal
allegation was directly related to the subject matter of appellant's
civil action. Cf. Jackson v. U.S. Air Force, EEOC Request No. 05950780
(June 27, 1997). Based on the foregoing, we find that the April 19,
1995 performance appraisal allegation concerns a discrete event which,
although similar to the allegations raised in appellant's civil action,
was not actually raised therein.
Accordingly, the agency's decision to dismiss the April 19, 1995
performance appraisal allegation was improper, and is hereby REVERSED.
That allegation is REMANDED to the agency for further processing in
accordance with this decision and the Order below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision 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 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.
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. 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. 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 (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:
Jan. 8, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations