01992271
08-29-2000
Allen L. McDaniel, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Allen L. McDaniel v. Department of Interior
01992271
August 29, 2000
.
Allen L. McDaniel,
Complainant,
v.
Bruce Babbitt,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01992271
Agency Nos. LMS-97-007 & LMS-98-005
DECISION
On January 22, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) dismissing his EEO
complaints of unlawful employment discrimination. The Commission accepts
the appeal pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified
at 29 C.F.R. � 1614.405).<1> Complainant alleged that he was subjected
to discrimination on the basis of reprisal (prior EEO activity) when:
on January 26, 1997, the Chief, Dallas Compliance Division, announced
that he was not going to fill two Area Audit Supervisor, GS-14 positions
thereby denying complainant access to promotion opportunities (Complaint
No. 1); and
on September 4, 1997, complainant was given a verbal warning about
remarks made about other employees (Complaint No. 2).
The agency dismissed both complaints pursuant to EEOC Regulation 64
Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.107(a)(3)), on the ground that complainant had
filed a civil action on the same matters on September 24, 1998, in the
United States District Court for the Northern District of Texas, Dallas
Division (Civil Action No. 3:96-CV-3077-P).
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(3)) allows for the
dismissal of an administrative complaint that raises the same issues
as a complaint pending in a United States District Court to which the
complainant is a party. Commission regulations mandate dismissal of the
EEOC 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).
The Commission notes that the record contains no copy of the District
Court complaint addressed by the agency in its FAD, so that no independent
determination of the accuracy of the FAD can be made. It is the burden
of the agency to adduce evidence in support of its final decision. See
Marshall v. Department of the Navy, EEOC Request No. 05910685 (September
6, 1991). However, in the instant case, complainant does not dispute
that he filed a civil action addressing the same matters. In fact,
on appeal, complainant concedes that the amended complaint to the civil
action encompasses Complaint No. 1. Accordingly, Complaint No. 1 (Agency
No. LMS-97-007) was properly dismissed and the agency's final decision
is AFFIRMED.
Complainant argues, however, that his civil complaint no longer includes
the reprisal allegations contained in Complaint No. 2. Specifically,
he argues that he withdrew the allegation from the civil complaint by
amending it, and includes a copy of �Plaintiffs' Response to Defendant's
Motion for Summary Judgment� in the civil action as evidence of this
amendment. In response, the agency argues that complainant has failed
to provide evidence that the court has ruled on this request to amend.
Without such evidence, the agency contends that it can not decide whether
it should reinstate the allegation from Complaint No. 2 for administrative
processing.
When a complainant does not dispute the filing of a civil action over
an identical issue, but contends that the complaint was dismissed, the
complainant has the burden to show that the civil action was in fact
dismissed without prejudice. Healy v. Postmaster General, EEOC Request
No. 05940548 (August 18, 1994). In the instant case, complainant has
failed to provide sufficient evidence that the allegation contained
in Complaint No. 2 was in fact dismissed from his civil complaint.
Accordingly, Complaint No. 2 (LMS-98-005) was properly dismissed and
the agency's final decision is AFFIRMED.<2>
As a final matter, we note that on appeal complainant contends that the
agency ignored his additional allegations concerning the obstruction
of justice, witness tampering, interference and ongoing harassment he
was subjected to during an EEO administrative hearing held on August 20,
1996, despite the fact that he brought these allegations to the attention
of the EEO investigator and other EEO personnel numerous times. He also
alleges that Complaint No. 2 involved the failure of the agency to fully
address his allegations of discrimination, specifically those involving
complainant's claims of interference with the EEO process at the hands of
various officials. The record establishes that complainant raised these
concerns with the EEO investigator during the investigation of the instant
complaints, but it appears that they were not added to his complaint.
Although the agency's failure to address these allegations in the
FAD is tantamount to a dismissal, see Kapp v. Department of the Navy,
EEOC Request No. 05940662 (January 23, 1995), we find that in raising
these claims, complainant is essentially alleging dissatisfaction with
the processing of prior complaints. Such claims are properly termed
�spin-offs� and are subject to dismissal under 64 Fed. Reg. 37, 644,
37,656 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.107(a)(8)). If a complainant is dissatisfied with the processing
of his pending complaints, he should be referred to the agency official
responsible for the quality of complaints processing. Agency officials
should earnestly attempt to resolve dissatisfaction with the complaints
process as early and expeditiously as possible, as well as make a record
of the concerns and the actions taken to resolve them. See EEO Management
Directive for 29 C.F.R. Part 1614 (EEO-MD-110), 5-25. Furthermore,
given the nature of complainant's allegations of improper processing, we
find that the proper method for addressing such matters would be within
the continued processing of the previously filed complaints, currently
pending before a United States District Court. Any remedial relief to
which he would be entitled would necessarily involve the processing
of the underlying complaints. Consequently, although we remind the
agency of its obligation to address concerns of improper processing as
early as possible and admonish it for not doing so in the case at hand,
we find that it was proper to dismiss these allegations.
CONCLUSION
Therefore, the agency's dismissal of complainant's complaints was proper,
and the agency's final decision is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
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 (S0400)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 29, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
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.
2 We note, however, that the Commission has held that in cases where the
civil action has been dismissed without prejudice, the administrative
complaint under 29 C.F.R. � 1614.105 may be reinstated. See Jones
v. Department of Justice, EEOC Request No. 05910970 (March 19, 1992).