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.