01983019
04-02-1999
Michael R. Ayala, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Michael R. Ayala v. Department of the Treasury
01983019
April 2, 1999
Michael R. Ayala, )
Appellant, )
)
v. ) Appeal No. 01983019
) Agency No. 97-1268
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
Agency. )
)
DECISION
Appellant filed the instant appeal from the agency's February 13, 1998
decision dismissing appellant's complaint for stating the same claim
that has been raised by appellant in other EEO complaints (96-1218,
96-1239, 97-1036M, and 97-1143) and for stating the same claim that is
the basis of a pending civil action in a United States District Court
(1:96-CV-3367-JOF).
The record contains an acceptance letter dated January 17, 1997 for
97-1036M. The issues in 97-1036M (as described in the January 17, 1997
letter) concern events in 1996. The instant complaint, as defined by
the agency, concern incidents in 1997 and other incidents which do not
have an occurrence date but are different from the issues in 97-1036M.
The agency has not explained how the incidents in 97-1036M are the same
as the incidents in the instant complaint. Therefore, we find that the
agency has failed to show that the instant complaint states the same
claim as raised in 97-1036M.
The record does not contain the complaints (or other documents defining
the complaints) in 96-1218, 96-1239, and 97-1143. The record also does
not contain the civil action at issue. Therefore, the Commission can not
determine if the agency properly dismissed the instant complaint pursuant
to 29 C.F.R. �1614.107(a) (same claim as EEO complaint) or �1614.107(c)
(basis of pending civil action). The Commission shall remand the matter
so that the agency may supplement the record with a copy of the complaints
(or documents, such as acceptance letters, defining the allegations in
those complaints) in 96-1218, 96-1239, and 97-1143 and a copy of the
civil action (1:96-CV-3367-JOF).
The agency's decision dismissing the complaint is VACATED and we REMAND
the complaint to the agency for further processing in accordance with
this decision and applicable regulations.
ORDER
The agency shall supplement the record with a copy of the complaints
(or documents, such as acceptance letters, defining the allegations
in those complaints) in 96-1218, 96-1239, and 97-1143 and a copy
of the civil action (1:96-CV-3367-JOF). Within 30 days of the date
this decision becomes final the agency shall either issue a letter
to appellant accepting the complaint for investigation or issue a new
decision dismissing the complaint. A copy of the letter accepting the
complaint or new decision dismissing the complaint must be sent to the
Compliance Officer as referenced herein.
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:
April 2, 1999 Ronnie Blumenthal
DATE Director
Office of Federal Operations