B-199258.OM, NOV 21, 1980

B-199258.OM: Nov 21, 1980

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AFMD - CLAIMS GROUP: RETURNED HEREWITH IS FILE PA-Z-2814594-389 TRANSMITTED BY YOUR MEMORANDUM OF JUNE 6. MILLER IS NOT ENTITLED TO BACK PAY FOR THE PERIOD SEPTEMBER 16. THERE IS A DUTY TO MITIGATE DAMAGES. 29 C.F.R. 1613.271(A)(1979). IT DOES NOT APPEAR THAT THE AGENCY IS REQUIRED TO PAY HER BACK PAY FOR THE PERIOD SHE ATTENDED LAW SCHOOL. GAO DOES NOT HAVE JURISDICTION TO RENDER A DECISION ON HER CLAIM. WE HAVE BEEN ADVISED BY THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION THAT IF MS. MILLER IS DISSATISFIED WITH THE MANNER IN WHICH THE AGENCY HAS COMPLIED WITH HER EEO SETTLEMENT AGREEMENT. SHE MAY SEEK TO HAVE HER EEO COMPLAINT REINSTATED PURSUANT TO 29 C.F.R. 1613.217(A)(1979). COPIES OF CITED DECISIONS AND REGULATIONS ARE ATTACHED FOR ENCLOSURE TO MS.

B-199258.OM, NOV 21, 1980

SUBJECT: BARBARA C. MILLER - CLAIM FOR BACK PAY B-199258-O.M.

ASSOCIATE DIRECTOR, AFMD - CLAIMS GROUP:

RETURNED HEREWITH IS FILE PA-Z-2814594-389 TRANSMITTED BY YOUR MEMORANDUM OF JUNE 6, 1980, RELATIVE TO THE CLAIM OF BARBARA C. MILLER FOR BACK PAY IN CONNECTION WITH THE SETTLEMENT OF HER EEO COMPLAINT.

ON THE BASIS OF THE PRESENT RECORD, IT WOULD BE OUR VIEW THAT MS. MILLER IS NOT ENTITLED TO BACK PAY FOR THE PERIOD SEPTEMBER 16, 1978, TO MARCH 12, 1979. UNDER BOTH THE BACK PAY ACT AND TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED, THERE IS A DUTY TO MITIGATE DAMAGES. 29 C.F.R. 1613.271(A)(1979); 5 C.F.R. 550.804(D) (1979). ACCORDINGLY, ABSENT EVIDENCE THAT MS. MILLER MADE A REASONABLE EFFORT TO SEEK EQUIVALENT EMPLOYMENT, IT DOES NOT APPEAR THAT THE AGENCY IS REQUIRED TO PAY HER BACK PAY FOR THE PERIOD SHE ATTENDED LAW SCHOOL. HOWEVER, SINCE THIS CLAIM ARISES UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED, 42 U.S.C. 2000E-16, GAO DOES NOT HAVE JURISDICTION TO RENDER A DECISION ON HER CLAIM. CLEM H. GIFFORD, B-193834, JUNE 13, 1979; MARTHA B. POTEAT, B-196019, APRIL 23, 1980. THE MATTER SHOULD BE RESOLVED THROUGH THE APPROPRIATE EEO PROCEDURE.

WE HAVE BEEN ADVISED BY THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION THAT IF MS. MILLER IS DISSATISFIED WITH THE MANNER IN WHICH THE AGENCY HAS COMPLIED WITH HER EEO SETTLEMENT AGREEMENT, SHE MAY SEEK TO HAVE HER EEO COMPLAINT REINSTATED PURSUANT TO 29 C.F.R. 1613.217(A)(1979). THE PARTIES MAY SEEK FURTHER INFORMATION IN THIS REGARD FROM THE OFFICE OF FIELD SERVICES, TECHNICAL GUIDANCE DIVISION, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, 2401 E STREET N.W., WASHINGTON D.C. 20506.

THE PARTIES SHOULD BE ADVISED OF THE ABOVE. COPIES OF CITED DECISIONS AND REGULATIONS ARE ATTACHED FOR ENCLOSURE TO MS. MILLER AND THE AGENCY.

DIGEST

GAO DOES NOT HAVE JURISDICTION TO RENDER A DECISION ON CLAIMS ARISING UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED, AND, QUESTION CONCERNING IMPLEMENTATION OF THE CLAIMANT'S EEO SETTLEMENT AGREEMENT SHOULD BE RESOLVED THROUGH THE APPROPRIATE EEO PROCEDURE.