01986543_r
10-06-1999
Steven M. Schwartz, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Steven M. Schwartz, )
Appellant, )
)
)
v. ) Appeal No. 01986543
) Agency No. 4-H-330-1493-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On August 27, 1998, appellant filed a timely appeal of a final agency
decision, which was dated August 5, 1998, dismissing his complaint,
pursuant to 29 C.F.R. �1614.107(c), for filing a civil action.
The record indicates that on June 10, 1996, appellant filed a formal
complaint alleging discrimination based on race (Caucasian), sex (male),
mental disability (anxiety and fear disorder), and in reprisal for prior
EEO activity when on March 21, 1996, he was bypassed for a bid position.
In its final decision, the agency stated that on February 25, 1997,
appellant filed a civil action (96-6206-CIV-Gonzalez) in the United States
District Court, Southern District of Florida, Fort Lauderdale Division,
concerning his claim of discriminatory treatment by the agency and his
labor organization, including the facts and circumstances involved in
the present complaint.
EEOC Regulation 29 C.F.R. �1614.107(c) provides that the agency shall
dismiss a complaint or portion of a 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).
We note that dismissal of a complaint is warranted when the issues
in the complaint and in the civil action are the same, and when the
complaint and the civil action allege violation of the same statutes.
Krumholz v. Department of Veterans Affairs, EEOC Request No. 05940411
(March 23, 1995). If the complaint alleges violation of a statute
not alleged in the civil action; or if the allegations raised in the
civil action, while similar in nature to the allegations raised in the
complaint, are brought under bases which are not covered by the statutes
listed in 29 C.F.R. �1614.408, the agency may not dismiss the complaint
pursuant to 29 C.F.R. �1614.107(c). Evans v. Department of Veterans
Affairs, EEOC Request No. 05940499 (May 18, 1995).
Upon review, we find that appellant's civil action did not allege
discrimination under Title VII, focusing instead on breach of the duty
of fair representation, breach of the collective bargaining agreement,
violation of the federal privacy act, breach of contract, and violation
of the federal R.I.C.O act on the part of the agency, including the
Department of Health and Human Services, the National American Postal
Workers' Union, and the Miami Local American Postal Workers' Union.
We note that to the extent the civil action alleged retaliation, this
was based on the agency's alleged violation of the statute prohibiting
the obstruction of justice, 18 U.S.C. �1513, rather than retaliation
covered under Title VII. Furthermore, on appeal, appellant submits a
stipulation dated February 18, 1998, wherein the parties agreed that
the alleged discrimination based on Rehabilitation Act would be excluded
from the civil action at issue.
Accordingly, the agency's decision is REVERSED, and the complaint is
REMANDED to the agency for further processing in accordance with this
decision and applicable regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded complaint in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded complaint within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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 29 C.F.R. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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 (R0993)
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. 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:
October 6, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations