Colin Levy, Complainant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionFeb 18, 2000
01985725 (E.E.O.C. Feb. 18, 2000)

01985725

02-18-2000

Colin Levy, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.


Colin Levy v. Department of the Treasury

01985725

February 18, 2000

Colin Levy, )

Complainant, )

)

v. ) Appeal No. 01985725

Lawrence H. Summers, ) Agency No. 96-2122R

Secretary, )

Department of the Treasury, )

Agency. )

____________________________________)

DECISION

On July 6, 1998, complainant filed an appeal with this Commission from

a final agency decision (FAD) dated June 5, 1998, pertaining to his

complaint of unlawful employment discrimination in violation of Title

VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e

et seq. and the Age Discrimination in Employment Act of 1967 (ADEA),

as amended, 29 U.S.C. � 621 et seq. <1> Because the agency failed to

submit a copy of the certified receipt, or any evidence, indicating

the date complainant received the final agency decision, the Commission

will exercise its discretion and accept complainant's appeal as timely.

See 64 Fed. Reg. 37, 644, 37, 656 (1999)(to be codified as 29 C.F.R. �

1614.402(a)). In his complaint, complainant alleged that he was subjected

to discrimination on the bases of race (White), age (DOB 7/22/49),

and in retaliation for prior EEO activity when:

On September 6, 1995, one of complainant's supervisors allegedly

divulged personal information concerning complainant in the presence

of another management official; and

On or about September 6, 1995, an attorney for the agency allegedly

wrote a memorandum to complainant's supervisor that released

confidential information relating to complainant.

On April 7, 1997, complainant received a final agency decision (FAD 1)

which dismissed his discrimination complaint on the grounds that it

was the basis of a pending civil action (H-97-0549) in the United States

District Court for the Southern District of Texas. The agency argued that

the discrimination complaint and the civil action both concerned the issue

of whether complainant was discriminated against when in September 1995,

personal and confidential information about complainant was allegedly

divulged by management and an agency attorney.

Complainant appealed the final agency decision to the Commission (EEO

Appeal No. 01974290).

By decision dated February 18, 1998, the Commission found that the civil

action did contain the same issues raised in complainant's administrative

complaint but did not uphold the agency's dismissal because during his

appeal, complainant stated that his civil action had been dismissed.

Thus, the Commission remanded the complaint to the agency to determine

whether the civil action had been dismissed with or without prejudice.

By letter dated June 5, 1998, the agency issued a second final agency

decision (FAD 2), in which it again dismissed complainant's complaint

for stating the same claim raised in a civil action. Specifically, the

agency found that complainant's discrimination claim had been dismissed

by the district court with prejudice for failing to state a claim.

The record reveals that on February 21, 1997, complainant filed a civil

action in district court which contained the same issues raised in

complainant's present EEO complaint. In addition, the record shows that

on June 30, 1997, the district court dismissed complainant's claims of

age and race discrimination with prejudice. Finally, the record reveals

that on July 29, 1997, complainant appealed the district court decision

dismissing his civil action for failure to state a claim.

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

cited as 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).

In the present case, the district court dismissed complainant's civil

action on June 30, 1997, with prejudice. As the civil action concerned

the same issues raised in complainant's present complaint, we find that

these same issues can not now be raised in the EEO process.

Accordingly, the agency's dismissal of complainant's complaint 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:

February 18, 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

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant

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.