01982317
03-10-1999
Itanion Jones, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Pacific/Western Agency.
Itanion Jones v. United States Postal Service
01982317
March 10, 1999
Itanion Jones, )
Appellant, )
)
v. ) Appeal No. 01982317
) Agency No. 4F-907-0076-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Pacific/Western )
Agency. )
______________________________)
DECISION
I. INTRODUCTION
Appellant filed the instant timely appeal from the agency's decision
dated June 27, 1997, dismissing appellant's complaint. The agency
dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(c), on the
ground that it raised a matter in the complaint that was the basis of
a civil action decided by a United States District Court.
II. ISSUE
Whether the agency correctly decided that the filing of the prior civil
action barred the instant complaint
III. BACKGROUND
The civil action in question was brought by an agency employee against
the agency head in his official capacity and against several agency
employees in their individual capacities. Appellant was among the
individual defendants. Plaintiff alleged that the agency had violated
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq., and that appellant had committed the state law torts of
negligence, intentional infliction of emotional distress and negligent
infliction of emotional distress. Appellant requested that the agency
provide her with defense counsel. That request was denied. All claims
against appellant were ultimately dismissed by the District Court on
statute of limitations grounds.
Thereafter, appellant filed an EEO complaint, alleging that she had
been discriminated against on the basis of race (Black) and sex (female)
when her request for counsel to defend her in the civil action was
denied. The agency dismissed the complaint on the ground that appellant
had been a party to the civil action.
IV. ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(c) provides that the agency shall
dismiss any portion of a complaint that is the basis of a civil action
decided by a United States District Court in which the complainant was
a party. The purpose of this regulation is 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. Shapiro v. Department of the Army,
EEOC Request No. 05950740 (October 10, 1996).
Section 1614.107(c) has no application to this case because appellant
asserted no claim in the civil action. She was a defendant in that case
and made no affirmative claim of any kind against any other party.
None of the issues ruled on by the District Court is raised by
appellant's EEO complaint. For this reason, her EEO complaint cannot
have formed the "basis" of the prior civil action and there is no danger
of inconsistent or conflicting decisions.
V. CONCLUSION
For the foregoing reasons, the agency was in error when it dismissed
the complaint on the basis of 29 C.F.R. � 1614.107(c).
Accordingly, we VACATE the final agency decision and REMAND the allegation
to the agency in accordance with this decision and the ORDER below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. � 1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations 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. � 1614.10.
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:
March 10, 1999 ____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations