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.