05971026
07-14-2000
Velma Jones, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Velma Jones v. Department of the Navy
05971026
July 14, 2000
Velma Jones, )
Complainant, )
)
v. ) Request No. 05971026
) Appeal No. 01971942
Richard J. Danzig, ) Agency No. DON 95-41273-020
Secretary, )
Department of the Navy, )
Agency. )
)
GRANTING OF REQUEST TO RECONSIDER
On August 29, 1997, the complainant timely initiated a request to the
Equal Employment Opportunity Commission to reconsider the decision in
Jones v. Department of the Navy, EEOC Appeal No. 01971942 (August 15,
1997).<1> The Commission may, in its discretion, reconsider a previous
decision where the party demonstrates that: (1) the previous decision
involved a clearly erroneous interpretation of material fact or law;
or (2) the decision will have a substantial impact on the policies,
practices or operations of the agency. 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.405(b)).
ISSUES PRESENTED
Whether (1) the Commission's dismissal of the complainant's appeal on
the grounds that it was untimely filed should be reversed, and (2)
whether the complainant's complaint should be dismissed because she
filed a civil action on the same matter.
BACKGROUND
The complainant filed an EEO complaint dated April 10, 1995 which was
defined by the agency as alleging she was discriminated against on the
bases of race (black), age (DOB 11/6/38) and disability (Lupus and
blind in one eye) when (1) in January 1995 she received low ratings
for the positions of Employee Development Specialist, GS-0235-7/9,
Merit Promotion Announcement CPE-345(94) and Position Classification
Specialist, GS-0221-5/7/9/11 Merit Promotion Announcement CPE-374(94);
(2) in February 1995 she was not selected for the above positions; and (3)
she was subjected to a continuous pattern and practice of inconsistent
use of the Merit Staffing Plan in rating which hindered her opportunity
for advancement. The ratings refer to scores received by the complainant
in connection with being considered for positions.
Following an investigation, the complainant timely requested a hearing.
However, near the time of her request, the agency issued a final decision
dismissing the complainant's complaint on the grounds that it was the
basis of a pending civil action in a United States District Court.
See 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.107(a)(3)).
Later, on September 30, 1996, the United States District Court reached a
decision on the complainant's civil action. The Order stated that the
complainant filed an amended civil action under Title VII of the Civil
Rights Act of 1964, as amended, � 2000e et seq. in March 1995. It found
that her civil action claims that she was discriminated against on the
basis of race with regard to allegation (2) and reprisal (EEO activity)
with regard to allegation (3) were contained in her EEO administrative
complaint of April 10, 1995. Reasoning that the complainant filed
her amended civil action prior to her administrative complaint, the
court found that the complainant failed to exhaust her administrative
remedies.<2>
With regard to the above civil action reprisal claim, the District Court
went on to find that while a complainant does not always have to file a
separate administrative charge claiming reprisal, she could not rely on
this exception because her administrative EEO complaint was not timely
filed with regard to this matter.
The District Court Order stated that the complainant also alleged
disability discrimination. It found that since the complainant brought
her claims solely under Title VII, which does not include disability
claims, the agency was entitled to summary judgment on the disability
claim. <3>
The complainant appealed the District Court's decision on her Title VII
claims to the United States Court of Appeals for the Eleventh Circuit.
It held that with respect to the complainant's failure to promote and
retaliation claims, the District Court properly found that the complainant
failed to exhaust her administrative remedies. It ruled that since the
complainant failed to exhaust her administrative remedies with respect to
her Title VII claims, they were not properly before the District Court.
It also found that since the complainant presented no argument on her
disability claim, it was abandoned.<4>
The previous decision found that the complainant filed her appeal
from the final agency decision on December 19, 1996, and hence it
was untimely filed. On appeal, the complainant submitted persuasive
evidence showing that she actually filed her appeal on October 28, 1996,
and hence we find she filed it then.
In her request for reconsideration, the complainant states that her
civil action was dismissed, that she wishes to pursue her administrative
remedies, and that she filed her appeal with the Commission within 30 days
of the date she received the District Court Order. In response to the
complainant's request, the agency argues that the complainant failed to
meet the criteria for reconsideration, and resubmits its appeal brief.
The brief argued that the complainant untimely filed her appeal and,
referring to the District Court Order, argued that the complainant's
complaint had already been adjudicated.
ANALYSIS AND FINDINGS
EEOC Regulation 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 purpose of this provision of the
regulations is to avoid duplicative investigation of identical complaints
by two different fact finding bodies. However, the Commission has held
that in cases where the complainant's civil action has been dismissed
without prejudice, the administrative complaint may be reinstated.
Jones v. Department of Justice, EEOC Request No. 05910970 (March 19,
1992).
Rule 41(b) of the Federal Rules of Civil Procedure provides that unless
the Court specifies otherwise, an involuntary dismissal operates
as an adjudication on the merits and must be considered a dismissal
with prejudice except where, inter alia, the dismissal is for lack of
jurisdiction. We find that the Circuit Court's determination that the
Title VII issues were not properly before the District Court constitutes
a finding that the District Court lacked jurisdiction over these claims.
Accordingly, with regard to the Title VII claims, we disagree with the
agency's argument that the complainant's administrative complaint was
adjudicated in court, and hence should be dismissed.
The complainant did not raise age discrimination in her civil action
and it was not addressed by the courts. Since the Title VII claim must
be processed by the agency, we find the administrative age basis, which
covers the same allegations, also survives.
But the District Court granted summary judgment and entered judgment
for the agency on the complainant's disability claim because the civil
action was solely brought under Title VII. Since the Court of Appeals
found that the complainant later abandoned her disability claim, we find
it has been adjudicated against the complainant. Accordingly, on remand,
the agency must not process the disability claim.
The agency also asserts that the complainant untimely filed her appeal
from its final decision. In this case, however, we find that the use of
the equitable tolling principle is justified to extend the time period
for the complainant's appeal. The complainant filed her appeal within
30 days of the date she received the District Court Order dismissing her
civil action. In addition, her civil action was pending until June 30,
1998. Consequently, we find that the complainant's appeal is timely.
See 29 C.F.R. � 1614.604(c). As the complainant timely requested a
hearing, on remand the agency shall request that the Commission appoint
an administrative judge to conduct a hearing in accordance with 64
Fed. Reg. 37,644, 37,657 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.109).
CONCLUSION
After a review of complainant's request to reconsider, the agency's
response thereto, the previous decision, and the entire record, the
Commission finds that the complainant's request meets the criteria of 29
C.F.R. � 1614.405(b). It is therefore the decision of the Commission
to grant the complainant's request, in part. The decision of the
Commission in EEOC Appeal No. 01971942 is REVERSED. The agency's final
decision dismissing the complainant's complaint is MODIFIED. This is
not a decision on the merits of the complainant's complaint.
ORDER
Within 30 calendar days of the date the agency receives this decision,
it shall request that the Commission appoint an administrative judge to
conduct a hearing on the complainant's complaint in accordance with 29
C.F.R. � 1614.109, and provide a copy of this request to the complainant.
With regard to the instant complaint, this must include only claims
under Title VII and the ADEA. Thereafter, the agency shall process the
complainant's complaint in accordance with 29 C.F.R. � 1614.109 et seq.
A copy of the agency's letter requesting the appointment of an
administrative judge must be sent to the Compliance Officer as referenced
below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL<5>
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 (Q0400)
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 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
July 14, 2000
_________ _________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to
all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable,
in deciding the present appeal. The regulations, as amended, may also be
found at the Commission's website at www.eeoc.gov.
2Velma Jones v. John H. Dalton, Secretary of the Navy, Civil Action No.
3:96cv163/RV (N.D. FL 1996). The 1995 nonselections include allegation 1.
3The District Court Order went on to address the above civil action
race and reprisal discrimination claims on the merits. It found that
the complainant failed to create an issue of fact on these claims.
4Velma Jones v. John H. Dalton, Secretary of the Navy, 96-3445 (11th
Cir. June 30, 1998).
5While this decision is issued in response to a request for reconsideration,
either party may request reconsideration because this is the first time the
Commission addressed whether the final agency decision correctly dismissed
the complainant's complaint.