Steven M. Schwartz, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 18, 2000
01991971 (E.E.O.C. May. 18, 2000)

01991971

05-18-2000

Steven M. Schwartz, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Steven M. Schwartz, )

Complainant, )

)

v. ) Appeal No. 01991971

) Agency No. 1-H-333-0005-97

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

On August 29, 1998, complainant filed a timely appeal of the agency

decision dated August 12, 1998, dismissing his complaint for filing a

civil action.<1>

The record indicates that on January 13, 1997, complainant filed a formal

complaint alleging discrimination based on mental disability (anxiety and

fear disorder) and in reprisal for prior EEO activity when on September

16, 1996, he was forced to do his FSM training at the Miami Processing

and Distribution Center, instead of the South Florida Processing and

Distribution Center that was approved by his doctor.

In its decision, the agency stated that on February 25, 1997, complainant

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.

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 regulation

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 complainant'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 obstruction of justice, pursuant

to 18 U.S.C. � 1513, rather than retaliation covered under Title VII.

Furthermore, on appeal, complainant submits a stipulation dated February

18, 1998, wherein the parties agreed that the alleged discrimination

in violation of the 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 (E0400)

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 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 (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 (M0300)

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); Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION

(R0400)

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:

May 18, 2000

DATE

Carlton

M.

Hadden,

Acting

Director

Office of Federal Operations

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.