John R. Jones, Complainant,v.F. Whitten Peters, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionJul 27, 2000
07a00020 (E.E.O.C. Jul. 27, 2000)

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.