01981563
11-18-1999
George Kelada, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
George Kelada v. Department of the Navy
01981563
November 18, 1999
George Kelada, )
Complainant, )
)
v. ) Appeal No. 01981563
) Agency Nos. 93-60530-030
Richard J. Danzig, ) 93-60530-031
Secretary, ) 94-60530-002
Department of the Navy, ) 94-60530-004
Agency. ) 94-60530-005
______________________________) 94-60530-008
94-60530-010
94-60530-020
94-60530-027
96-60530-006
DECISION
Complainant filed an appeal with this Commission from a final decision of
the agency concerning his complaints 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., Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. �791 et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq.<1>
The final agency decision was issued on October 14, 1997. The appeal
was postmarked December 9, 1997. Accordingly, the appeal is timely
(see 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
cited as 29 C.F.R. �1614.402(a)), and is accepted in accordance with
EEOC Order No. 960, as amended.<2>
ISSUE PRESENTED
The issue presented is whether the agency properly dismissed complainant's
claims on the grounds that these matters are the basis of a pending
civil action in a United States District Court.
BACKGROUND
Complainant was employed by the agency as a DP-2, General
Engineer. Complainant filed several formal EEO complaints over the period
of July 12, 1993 - March 26, 1996 (Agency Nos. 93-60530-030, 93-60530-031,
94-60530-002, 94-60530-004, 94-60530-005, 94-60530-008, 94-60530-010,
94-60530-020, 94-60530-027, and 96-60530-006). Complainant filed a civil
action on December 23, 1996, George Kelada v. Department of the Navy,
(identified as CV-F-96-6379 REC/DLB (E.D. Cal.), in the United States
District Court for the Eastern District of California.<3>
The Commission issued a decision with regard to Agency Nos. 93-60530-030,
93-60530-031, and 94-60530-002 on September 18, 1996. George Kelada
v. Department of the Navy, EEOC Appeal No. 01950951 (September 18,
1996). In that decision, the Commission affirmed the agency's final
determination that complainant had not been discriminated against
on the bases of his national origin and in reprisal for his previous
EEO activity. The Commission issued a decision with regard to Agency
Nos. 94-60530-008 and 94-60530-010 on December 3, 1997. George Kelada
v. Department of the Navy, EEOC Appeal No. 01956413 (December 3,
1997). In that decision, the Commission affirmed the agency's final
determination that complainant had not been discriminated against
on the bases of his national origin and in reprisal for his previous
EEO activity. The Commission issued a decision with respect to Agency
No. 93-60530-027 on February 3, 1998. George Kelada v. Department of
the Navy, EEOC Appeal No. 01962864 (February 3, 1998). In that decision,
the Commission affirmed the agency's final determination that complainant
had not been discriminated against on the bases of his national origin
and in reprisal for his previous EEO activity. The Commission issued
a decision with regard to Agency Nos. 94-60530-004, 94-60530-005,
and 94-60530-020 on March 3, 1998. George Kelada v. Department of the
Navy, EEOC Appeal No. 01960081 (March 3, 1998). In that decision, the
Commission affirmed the agency's final determination that complainant
had not been discriminated against on the bases of his national origin
and in reprisal for his previous EEO activity.
On March 26, 1996, complainant filed a formal EEO complaint with regard
to his termination (Agency No. 96-60530-006). The agency defined the
accepted claim as whether complainant was subjected to discrimination
based on his race (Caucasian), national origin (Egyptian), age (DOB
8/16/44), physical disability, mental disability, and in reprisal for
his previous EEO activity when he was removed from employment with the
agency effective December 5, 1995.
In a final decision issued on October 14, 1997, the agency dismissed
the following complaints in their entirety: Agency Nos. 93-60530-030,
93-60530-031, 94-60530-002, 94-60530-008, 94-60530-020, 94-60530-027,
and 96-60530-006. The agency also dismissed claim 3 of Agency
No. 94-60530-004, claim 4 of Agency No. 94-60530-005, and claim 1 of
Agency No. 94-60530-010. These claims were dismissed on the grounds
that they are identical to issues raised in a pending civil action in a
United States District Court. The agency determined that complainant
filed the aforementioned civil action on December 23, 1996, in the
United States District Court, Eastern District of California, and that
it was subsequently refiled in the United States District Court, Central
District of California, Western Division.
On appeal, complainant argues, with regard to Agency No. 96-60530-006,
that in his civil action, he did not include the bases of race, age,
physical disability, and mental disability. Complainant also contends
that several issues in his complaints that were dismissed were not raised
in his civil action.
In response, the agency asserts with regard to Agency No. 96-60530-006
that the matter of complainant's termination was raised both in the
complaint and the civil action. The agency notes that in the civil
action, complainant challenges his termination on the basis of his
national origin. With respect to complainant's claim that the civil
action does not address the bases of race, age, physical disability, and
mental disability, the agency maintains that the focus of the complaint
is on the factual claims and not the bases or precise relief requested.
As for the other matters raised by complainant, the agency asserts that
some of the complaints at issue have already been ruled upon by the
Commission.
ANALYSIS AND FINDINGS
Volume 64 of the Federal Register, 37,644, 37,656 (1999) (to be codified
and hereinafter cited as 29 C.F.R. �1614.107(a)(3)) provides that prior
to a request for a hearing in a case, the agency shall dismiss an entire
complaint that 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.
In the present case, we find that the agency's decision dismissing
Agency Nos. 93-60530-030, 93-60530-031, 94-60530-002, 94-60530-008,
94-60530-020, and 94-60530-027 was improper. The agency previously
issued final determination addressing the merits of these complaints
and the Commission affirmed the agency's findings of no discrimination.
When the agency learned that complainant filed a civil action based
on these same claims, the agency should have notified the Commission
on those matters pending on appeal, so that the appeals could have
been administratively closed. To subsequently attempt to procedurally
dismiss a formal complaint on which a merit determination has already
been made is improper. See 64 Fed. Reg. 37,644, 37,657 (1999)(to be
codified as 29 C.F.R. �1614.110). Accordingly, the agency's dismissal
of Agency Nos. 93-60530-030, 93-60530-031, 94-60530-002, 94-60530-008,
94-60530-020, and 94-60530-027 was improper and is hereby VACATED.
With regard to Agency No. 96-60530-006, complainant claimed that he
was discriminated against on the bases of his race, national origin,
age, physical disability, mental disability, and in reprisal for his
previous EEO activity when he was removed from employment effective
December 15, 1995. In his civil action, complainant raises the issue
of his removal and claims that it was a result of discrimination on the
basis of his national origin.
Dismissal of a complaint is warranted when the claims in the complaint
and in the civil action are the same, that is where the acts of alleged
discrimination are identical. Curtis v. USPS, EEOC Request No. 05910400
(May 9, 1991); Krumholz v. Department of Veterans Affairs, EEOC Request
No. 05940411 (March 23, 1995). The Commission has stated that in order
to dismiss an EEO complaint that involves the same matters as are raised
in a civil action, the civil action must have been brought under one of
the statutes prohibiting discrimination. Heflin v. Department of the
Army, EEOC Request No. 05940474 (September 29, 1994). In the present
case, complainant raised the same matter in his civil action, i.e., his
removal, and he alleged discrimination pursuant to Title VII. While in
his administrative EEO complaint, complainant also raised claims under
the Rehabilitation Act and the ADEA, we find that his administrative
complaint was properly dismissed pursuant to the regulations since
complainant brought his civil action under one of the statutes listed in
64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. �1614.407).
Accordingly, dismissal of Agency No. 96-60530-006 is warranted to
prevent 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 Stromgren v. Department of Veterans Affairs, EEOC Request No. 05891079
(May 7, 1990); Sandy v. Department of Justice, EEOC Appeal No. 01893513
(October 19, 1989); Kotwitz v. United States Postal Service, EEOC Request
No. 05880114 (October 25, 1988). Therefore, the agency's dismissal of
Agency No. 96-60530-006 is 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
November 18, 1999
_________________ _____________________________
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 and the agency on:
______________________ ______________________
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.
2The record does not establish when appellant received the final agency
decision. Absent evidence to the contrary, we find that the instant
appeal was timely filed
3The civil action was subsequently transferred to the United States
District Court, Central District of California, Western Division.