01A04073_r
08-27-2002
Rosie C. Padilla, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Rosie C. Padilla v. Department of the Air Force
01A04073
August 27, 2002
.
Rosie C. Padilla,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A04073
Agency No. KHOF96180
Hearing No. 360-99-8588X
DECISION
Complainant filed an appeal with this Commission from the April 21,
2000 final agency decision implementing the EEOC Administrative Judge's
(AJ) decision dismissing complainant's complaint pursuant to 29 C.F.R. �
1614.107(a)(3).
Complainant contacted the EEO office claiming that she was discriminated
against when on January 17, 1996, she became aware that she was
not selected for the position of Supervisory Production Controller,
GS-115212 at LAPS, Promotion Certificate P95-0554 issued December
11, 1995. Informal efforts to resolve complainant's concerns were
unsuccessful. Subsequently, on April 2, 1996, complainant filed a
complaint on the bases of national origin, sex and in reprisal for prior
protected activity.
The record reflects that on May 4, 1998, the United States District
Court for the Western District of Texas issued an Order Accepting Report
and Recommendation of the United States Magistrate Judge (Regarding
Issue of Class Certification). The Order noted that complainant was
one of eighteen named plaintiffs (CA No. SA-96-CA1167-FB), Therein, the
District's Court denied class certification, which was upheld on March 17,
1999. The May 4, 1998 Order dismissed the claims without prejudice, noting
that: �nothing in this order precludes the eighteen individual plaintiffs
from pursuing their claims which are fact-specific to themselves and
nothing precludes other individuals of the approximately 1,200 proposed
class from obtaining individual provable claims of discrimination.�
By letter dated May 22, 1998, the agency informed complainant that
based on the District Court Order of May 4, 1998, referenced above,
which denied a motion for class certification, complainant's individual
complaint would be processed in accordance with 29 C.F.R. � 1614.106(d).
On June 11, 1998, the agency accepted the complaint for investigation,
and subsequently complainant requested a hearing before an EEOC
Administrative Judge.
On October 26, 1999, complainant received a letter of Acknowledgment
and Order for a hearing before an EEOC Administrative Judge. On March
6, 2000, before a hearing was held in this matter, the agency filed a
Motion to Dismiss asserting that the allegation raised by complainant
in her formal complaint is identical to that set forth in a class action
(CA No. SA-96-CA-1167-FB), which was adjudicated by a court of competent
jurisdiction on March 17, 1999.
On March 22, 2000, the AJ granted the Motion to Dismiss, dismissing
the complaint pursuant to 29 C.F.R. �1614.107 (a)(3). The AJ concluded
that the United States District Court for the Western District of Texas,
San Antonio Division, dismissed complainant's complaint with prejudice
on March 17, 1999 (CA No. SA-96-CA-1167-FB). The agency adopted the
AJ's findings in its April 21, 2000 final order.
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. Commission regulations
mandate dismissal of the EEO complaint under these circumstances so as to
prevent a complainant from simultaneously pursuing both administrative and
judicial remedies on the same matters, wasting resources, and creating the
potential for inconsistent or conflicting decisions, and in order to grant
due deference to the authority of the federal district court. See Shapiro
v. Department of the Army, EEOC Request No. 05950740 (October 10, 1996);
Stromgren v. Department of Veterans Affairs, EEOC Request No. 05891079
(May 7, 1990); Kotwitz v. United States Postal Service, EEOC Request
No. 05880114 (October 25, 1988). Moreover, the Commission has maintained
access to the EEO administrative process for complainants whose civil
actions were dismissed without prejudice. Cooper v. Department of the
Treasury, EEO Request No. 05920795 (Apr. 8, 1993).
The Commission notes that the record contains no copy of the pages of the
March 17, 1999 District Court Order cited by the agency in support for
its Motion to Dismiss. The Commission notes that the agency's Motion
to Dismiss, relied upon by the AJ in her decision, addresses the contents
of pages 15, 16, and 17 of a District Court Order dated March 17, 1999 in
support of its assertion that the instant complaint should be dismissed.
The Commission acknowledges that the record contains the first three
pages of a United States District Court Order dated March 17, 1999 (Civil
Action No. SA-96-CA-1167-FB), submitted by complainant on appeal; however,
pages 15 - 17, relied upon by the agency in its Motion to Dismiss, are
not contained in the record. Nothing in the record supports the AJ's
findings that complainant's claims were dismissed with prejudice by the
District Court on March 17, 1999.
Given these circumstances, the Commission is unable to ascertain whether
the matters raised in the instant complaint have been raised in a civil
action. Accordingly, we VACATE the agency's final order and REMAND
the complaint to the agency for further processing in accordance with
the ORDER below.
ORDER
The agency is ORDERED to conduct a supplemental investigation as
to whether the complaint was properly dismissed pursuant to 29
C.F.R. �1614.107 (a)(3), which shall include the following actions:
The agency shall investigate and place in the record copies of all
court decisions related to complainant's civil class action, including
if available, pages 15, 16, and 17 of the March 17, 1999 District Court
Order, that was referenced in the agency's Motion to Dismiss.
Thereafter, the agency shall either issue a new final decision or submit
to the Hearings Unit of the EEOC's San Antonio District Office a request
for a hearing. If the agency submits a request for a hearing to the
EEOC's San Antonio District Office, the agency shall submit a copy of the
complaint file to the Hearings Unit. The supplemental investigation and a
copy of the notice that transmits the investigative file to the EEOC's San
Antonio District Office or a new final decision must be completed within
thirty (30) calendar days of the date that this decision becomes final.
A copy the final decision or evidence that the request and complaint
file have been transmitted to the Hearings Unit 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
August 27, 2002
__________________
Date