Steve Wroge, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service (Pacific Western), Agency.

Equal Employment Opportunity CommissionNov 5, 1999
01994712 (E.E.O.C. Nov. 5, 1999)

01994712

11-05-1999

Steve Wroge, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service (Pacific Western), Agency.


Steve Wroge, )

Appellant, )

)

v. ) Appeal No. 01994712

) Agency No. 4F-945-0066-99

William J. Henderson, )

Postmaster General, )

United States Postal Service )

(Pacific Western), Agency. )

________________ _____________)

DISMISSAL OF APPEAL

Appellant filed an appeal with this Commission from a final decision of

the agency concerning 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. The final decision was issued on April 2, 1999.

The appeal was received on May 17, 1999.

The record reflects that on March 15, 1999, appellant filed a formal

complaint, alleging that he was the victim of unlawful employment

discrimination on the basis of reprisal when,(1) he was called into his

supervisors office for an official discussion and (2) he was notified

that he did not qualify for the special route inspection requested on

January 9, 1999.

On April 2, 1999, the agency issued a final decision. Therein, the

agency determined that allegation (1) of discrimination failed to state

a claim and therefore, the agency dismissed the allegation. However,

the agency accepted allegation (2) for investigation. Thereafter,

appellant filed an appeal with the Commission, on or about May 17, 1999.

By letter dated July 14, 1999, the agency notified the Commission that

appellant filed a civil action in U.S. District Court. With its letter,

the agency enclosed a copy of a civil summons and

complaint filed by appellant on June 20, 1999, in the U.S. District

Court for the Northern District of California (Civil Case No. C 99-3181)

Appellant's civil complaint addressed the same matters that are the

subject of his EEO complaint, discussed above.

EEOC Regulation 29 C.F.R. �1614.410 provides that the filing of a civil

action �shall terminate Commission processing of the appeal.�

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 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. USPS, EEOC

Request No. 05880114 (October 25, 1988).

EEOC Regulation 29 C.F.R. �1614.408 provides that a complainant may file

a civil action in the U.S. District Court after 180 days from the date

of the filing of the appeal with the Commission if there has been no

final decision rendered by the Commission. The Commission notes, that

while appellant's civil action was filed prior to the expiration of the

180-day filing period, appellant's appeal should be dismissed in view

of the Commission's long-standing practice of conserving resources and

avoiding the potential for inconsistent or conflicting decisions. See,

Posey v. Department of the Navy, EEOC Appeal No. 01951777 (September 21,

1995). If the court dismisses appellant's civil action for premature

filing, he may request that the Commission reinstate his appeal for

further processing. Accordingly, appellant's appeal is hereby DISMISSED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in

this case if the appellant or the agency submits a written request

containing arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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. 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 (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 5, 1999

____________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations