George Kelada, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionNov 18, 1999
01981563 (E.E.O.C. Nov. 18, 1999)

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.