Alexander C. DiSante, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 1, 2000
01992238 (E.E.O.C. Mar. 1, 2000)

01992238

03-01-2000

Alexander C. DiSante, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Alexander C. DiSante, )

Complainant, )

)

v. ) Appeal No. 01992238

) Agency No. 4C-190-1185-95

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

Upon review, we find that the complaint was properly dismissed pursuant

to 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter

cited as 29 C.F.R. �1614.107(a)(3)).<1> This regulation provides

that prior to a request for a hearing in a case, the agency shall

dismiss an entire complaint that it 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, or that was the basis of a civil action

decided by a United States District Court in which the complainant was

a party. This regulation is designed 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. Berry v. Department of Justice,

EEOC Request No. 05930508 (January 21, 1994). Complainant claimed in his

formal EEO complaint, filed on April 25, 1996, that he was subjected to

discriminatory harassment on the bases of his mental disability (emotional

illness) and in reprisal for his previous EEO activity when: (1) on March

3, 1995, the Manager, Customer Service, Frankford Station told him that

he was never returning to his position as Manager of Frankford Station and

she was reassigning someone else to that position; (2) on March 16, 1995,

the Manager, Customer Services, Frankford Station again stated that he was

never returning to his position as Manager of Frankford Station; and, (3)

on April 24, 1995, after complainant told the Manager, Customer Services,

Frankford Station that he felt he should remain on detail, she demanded

that complainant return to his permanent position at Frankford Station.

The record reveals that complainant filed Civil Action No. 98-CV-5703 in

the United States District Court for the Eastern District of Pennsylvania

on October 28, 1998. In that civil action, complainant cited the bases of

mental disability and reprisal. Among the claims set forth by complainant

were that he was not permitted to return to his position as Manager

of Frankford Station; that the Manager, Customer Services continued

her harassment of him and continually embarrassed and humiliated him

in front of his coworkers, and that in or about April of 1995, he went

on stress leave from his position at Frankford Station. It is apparent

that the first and second claims set forth in the instant complaint are

encompassed by the civil action's reference to him not being permitted

to return to his position as Manager of Frankford Station. Further,

we find that the third claim in the instant complaint is linked to the

issues in the civil action concerning complainant being harassed by the

Manager, Customer Services and complainant using leave due to stress.

Accordingly, the final agency decision dismissing this complaint on the

aforementioned grounds was proper and is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON

APPEAL

RECONSIDERATION (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

March 1, 2000

_______________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative,

and the agency on:

DATE 1 On 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.