01983104
10-07-1999
Michelle R. Moore, Appellant, v. Secretary, Department of Agriculture, (Farm Service Agency), Agency.
Michelle R. Moore, )
Appellant, )
)
v. ) Appeal No. 01983104
) Agency No. 960516 Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
(Farm Service Agency), )
Agency. )
______________________________)
DECISION
The Commission finds the agency erred in its February 20, 1998 final
decision (FAD) dismissing appellant's EEO complaint for being the same
matter as a subsequent civil action, pursuant to 29 C.F.R. �1614.107(c).
We find the agency has raised no new contentions in response to
appellant's March 11, 1998 appeal, through her attorney, to reach a
contrary conclusion. We find that appellant, by her attorney, filed
a summons and complaint against the agency in United States District
Court for the Northern District of Mississippi, Eastern Division, under
docket number 1:97cv365-D-A on November 13, 1997, in connection with
her termination by the agency. We find this allegation to be essentially
the same allegation as that contained in her May 8, 1996 administrative
complaint, which we find was filed on May 14, 1996. However, we also
find that, in her civil action, appellant expressly limited her cause
of action to an alleged violation of the Family and Medical Leave Act
of 1993, as amended, 29 U.S.C. �2601 et seq., which is not a statute
enforced by the Commission.
We further find that, in her civil action, appellant declared she
intended to amend her civil action to include a violation of Title VII
of the Civil Rights Act of 1964, and the Pregnancy Discrimination Act
(PDA), once she had exhausted her administrative remedies. "The PDA,
42 U.S.C. [�]2000e(k)(1) provides that discrimination on the basis
of �pregnancy, childbirth or related medical conditions' constitutes
sex discrimination under Title VII [of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq.]." See Stewart v. U.S. Postal
Service, EEOC Request No. 05960071 (December 18, 1996) (quoting Stewart
v. U.S. Postal Service, EEOC Appeal No. 01933383 (September 29, 1995),
request to reconsider denied in Stewart v. U.S. Postal Service, EEOC
Request No. 05960071 (December 18, 1996)).
An agency shall dismiss a complaint when the complaint is the basis of a
pending civil action by the same complainant, provided not less than 180
days has elapsed from the filing of the administrative complaint. See 29
C.F.R. �1614.107(c), in pertinent part. In addition, a complainant may
file a civil action after 180 days from the filing of the administrative
complaint provided he/she has filed no appeal, and there has been
no issuance of a FAD. See 29 C.F.R. �1614.408(b), in pertinent part.
Further, the filing of a civil action terminates an appeal filed with
the Commission. See 29 C.F.R. �1614.410.
In the present case, we find appellant filed her civil action on
November 13, 1997, after 180 days from the date of her May 14, 1996
administrative complaint. We also find no evidence that the agency issued
a final decision or appellant filed an appeal prior to the applicable
period of 180 days. We find, however, that the FAD's reliance on 29
C.F.R. �1614.107(c) is misplaced. We find the agency improperly dismissed
appellant's administrative complaint because, although the issue in both
pleadings is the same (i.e., her termination) the bases are different
involving, as we indicated above, an exclusive allegation of a statute
the Commission does not enforce (i.e., the Family and Medical Leave Act).
See Evans v. Department of Veterans Affairs, EEOC Request No. 05940499
(May 18, 1995)(determinative fact is the civil action was not filed
pursuant to the specific statutes listed in 29 C.F.R. �1614.408, e.g.,
Title VII). (citation omitted.)
Accordingly, it is the decision of the Commission to VACATE the FAD and
REMAND appellant's administrative complaint for further processing, at
the point at which processing ceased, in accordance with the Commission's
decision and applicable regulations. The parties are advised that the
Commission's decision is not a decision on the merits of appellant's
administrative complaint. The parties are also advised that, if appellant
has amended her complaint in the manner in which we discussed above
(i.e., to allege a violation of Title VII and the PDA), the agency may
again dismiss appellant's complaint pursuant to 29 C.F.R. �1614.107(c),
provided the agency issues its dismissal contained in a new FAD with
appeal rights to the Commission. The agency is directed to comply with
the Commission's ORDER set forth below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to appellant
that it has received the remanded allegations 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 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 acknowledgement 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 (R0993)
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. 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.
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:
October 7, 1999
DATE Carlton M. Hadden, Acting Director Office of Federal
Operations