01992951
01-28-2000
Kathleen Kleinsorge v. Department of Transportation
01992951
January 28, 2000
Kathleen Kleinsorge, )
Complainant, )
)
v. ) Appeal No. 01992951
) Agency No. 498003
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
____________________________________)
DECISION
INTRODUCTION
On February 27, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) pertaining to her 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. <1>
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed complainant's
complaint for filing a complaint that is the basis of a pending civil
action in a United States District Court.
BACKGROUND
Complainant filed a formal complaint on October 2, 1997 alleging
discrimination based on reprisal (prior EEO activity) when she was
informed of her non-selection for an Aviation Safety Technician (AST)
position on July 8, 1997. Complainant also filed a civil action, Number
4:97CV1560-DJS, in the United States District Court Eastern District
of Missouri (The Court) on July 28, 1997, which she amended on October
28, 1997<2>. In her Second Amended Complaint, complainant alleged
subjection to a "persistent and continuous pattern of retaliatory and
discriminatory treatment," including:
the loss of promotion and training opportunities;
the loss of job duties, title, and income:
a change in lunch hour;
the denial of alternative work schedules;
a change in working conditions;
verbal and other abuse by supervisors;
a letter of reprimand; and
less favorable treatment than similarly situated employees.<3>
On February 5, 1999, the agency issued a final decision dismissing
complainant's complaint for filing a complaint that was the basis of
a pending civil action in a United States District Court. This appeal
followed. The agency filed a Motion for Summary Judgment in response to
complainant's civil action in early 1999 and the Court granted its motion
on April 7, 1999. In its order, the Court only considered two of the
above eight claims, (1) and (7). Both claims were only considered for
occurrences on or before May 23, 1996. In its order, the Court held that
complainant failed to exhaust her administrative remedies regarding claim
(1) and failed to establish a prima facie case of retaliation regarding
claim (7).
ANALYSIS AND FINDINGS
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).
Complainant filed a formal complaint based upon her non-selection for a
position in July 1997. She filed a civil action with the Court which
originally encompassed this agency action, however, in rendering its
decision on the agency's Motion for Summary Judgment, the Court only
considered the loss of promotion opportunities on or before May 23, 1996.
Therefore, the issues in complainant's administrative complaint and her
civil action were not identical. Webb v. Department of Veteran's Affairs,
EEOC Appeal No. 01940836 (March 10, 1994)(citing Curtis v. United States
Postal Service, EEOC Request No. 05910400 (May 9, 1991)). Accordingly,
the agency's decision is reversed and the complaint is remanded to the
agency for processing from the point at which it ceased.
CONCLUSION
Based on a review of the record and for the reasons cited above, it
is the decision of the Commission to REVERSE the agency's dismissal of
complainant's complaint and REMAND to the agency for further processing
in accordance with the findings above.
ORDER (E1199)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to
the complainant that it has received the remanded claims within thirty
(30) calendar days of the date this decision becomes final. The agency
shall issue to complainant a copy of the investigative file and also shall
notify complainant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless the
matter is otherwise resolved prior to that time. If the complainant
requests a final decision without a hearing, the agency shall issue
a final decision within sixty (60) days of receipt of complainant's
request.
A copy of the agency's letter of acknowledgment to complainant and an
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to the
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant has the right to file a
civil action on the underlying complaint in accordance with the paragraph
below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407
and 1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. �
2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
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 (R1199)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
Jan 28, 2000 Carlton M. Hadden, Acting Director
Date 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
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 Court, in its Grant of Summary Judgment, indicated the date of
filing was November 14, 1997.
3According to the record, complainant indicated her claims in her civil
action applied only to the events occurring prior to May 28, 1996.
The Court indicated that based on this statement complainant apparently
abandoned her other claims which referred to events occurring prior to
October 2, 1997.