01991547_r
12-22-1999
Robert Roseman, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Robert Roseman, )
Complainant, )
)
v. ) Appeal No. 01991547
) Agency No. 95-4015
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
______________________________)
DECISION
On December 24, 1998, complainant filed a timely appeal of a final agency
decision, which was dated October 22, 1998, dismissing his complaint
for filing a civil action.<1>
In its final decision, the agency identified the remaining claims in
complainant's October 27, 1994 complaint<2> as whether complainant was
discriminated against based on mental/physical disability (depression/low
back pain syndrome) and in reprisal for prior EEO activity when:
(1) Management denied his request for 35 minutes of administrative time
on February 11, 1994;
Management faxed sensitive and confidential information about him through
a coworker on February 17, 1994;
Management obtained a number of cases from his inventory on February 22
and 23, 1994, and failed to return them to him;
Management failed to provide him adequate time to prepare and present
his EEO complaints on February 18, 1994, March 10, 16, 23, and 28, 1994,
and April 15, 1994;
Management interfered with his representative's support and involvement
with his EEO complaints in February 1994;
Management conducted excessive casework reviews on a continual basis;
Management directed that he perform additional work by attaching a
Document Transmittal to all case files;
Management sought the assistance of a coworker to distort local work
practices in an attempt to obtain negative information on him; and
Management failed to grant his request to assign the same EEO Counselor
for his EEO complaints.
In the decision, the agency stated that complainant subsequently filed a
Civil Action Case No. 98-N-859 in the United States District Court for
the District of Colorado on April 16, 1998. The agency noted that in
that civil action, complainant alleged employment discrimination on the
bases of disability and in reprisal for prior EEO activity concerning
the denial of reasonable accommodation such as a reduced workload,
a flexible tour of duty, the issuance of a series of �directives�
and the imposition of additional work requirements and deadlines,
and his suspension and removal from his position. The agency stated
that complainant also alleged that he did not spend the percentage of
time demanded by the agency on �direct time� activities because he was
engaged in protected EEO activity, including but not limited to time
spent filing and prosecuting EEO complaints and related proceedings.
The agency found that the instant complaint involved the same matters
raised in the civil action.
The record contains a copy of the civil action complaint at issue.
Therein, complainant alleged, inter alia, that since June 1993, he
received a series of oral written communication and �directives� from
the agency and his continued requests for reasonable accommodation, i.e.,
a reduced workload and a flexible tour of duty, were denied by the agency.
Specifically, complainant alleged that on September 6, 1994, he was issued
a 30-day suspension for failure to follow various �directives� and on
March 21, 1995, he was issued a proposed action notice to remove him from
his employment for failure to comply with �directives� and deadlines.
The record indicates that by one of those �directives,� dated February
2, 1994, complainant was informed that he would no longer be allowed to
work credit hours.
Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to 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. This regulations is designed 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. Berry v. Department
of Justice, EEOC Request No. 05930508 (January 21, 1994).
The record indicates that complainant's civil action involved the alleged
discriminatory working conditions, the denial of reasonable accommodation,
and his removal and suspension for failure to follow �directives� which
were previously issued to him. With regard to complainant's claims
concerning leave and working conditions, i.e., claims 1-3 and 6-8, we
find that these are related to and/or intertwined with the matters raised
in his civil action since the removal/suspension were purportedly based,
in part, on those incidents.
We note that although the agency dismissed the remaining claims, i.e.,
claims 4, 5, and 9, based on the civil action, we find that they are more
properly dismissed for alleging dissatisfaction with the processing of
a previously filed complaint. Volume 64 Fed. Reg. 37,644, 37,656 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. �1614.107(a)(8))
provides that the agency shall dismiss a complaint that alleges
dissatisfaction with the processing of a previously filed complaint.
In claims 4, 5, and 9, complainant alleged that the agency improperly
processed his EEO complaints. Since these claims concerned complainant's
dissatisfaction with the processing of his EEO complaints, the agency
properly dismissed these claims pursuant to 29 C.F.R. �1614.107(a)(8).
Accordingly, the agency's final decision is hereby AFFIRMED for the
reasons set forth herein.
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:
December 22, 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, complainant's representative
(if applicable), and the agency on:
Date Equal Employment Assistant1On 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 indicates that two previous agency decisions were issued
on December 8, 1994, and May 24, 1995, addressing this October 27,
1994 complaint, which ultimately dismissed eight issues.