01982447
04-01-1999
Shawn Keeley, Appellant, v. I. Michael Heyman, Secretary, Smithsonian Institution, Agency.
Shawn Keeley v. Smithsonian Institution
01982447
April 1, 1999
Shawn Keeley, )
Appellant, )
)
v. ) Appeal No. 01982447
) Agency No. 9733051597
I. Michael Heyman, )
Secretary, )
Smithsonian Institution, )
Agency. )
______________________________)
DECISION
Based on a review of the record, we find that the agency properly
dismissed appellant's complaint, pursuant to EEOC Regulation 29 C.F.R. �
1614.107(c), because it is the basis of a pending civil action, identified
as 97-CV-1076, in the United States District Court for the District of
Columbia.<1>
EEOC Regulation � 1614.107(c) provides, in relevant part, 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, provided that
180 days have passed since the filing of the administrative complaint.
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).
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. Curtis v. United
States Postal Service, EEOC Request No. 05910400 (May 9, 1991); 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).
Appellant's civil action alleges discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq.<2> In lieu of filing a separate complaint with the agency,
appellant submitted a copy of the complaint filed in his civil action.
Appellant also alleges three additional issues before the agency:
(1) employees from the agency's General Counsel's Office obstruct EEO
investigations;
(2) the agency has known that trust fund employees are not subject to the
EEO procedures for federal employees, but has deliberately misinformed
trust/private roll employees about their rights; and
(3) the agency under-reports its EEO filings to the Commission.
Regarding allegations (1) and (2), the Commission has held that
allegations of improper processing do not state separate claims.
See Kleinman v. United States Postal Service , EEOC Request No. 05940579
(September 22, 1994). When such allegations are raised the agency should
refer the complainant to the agency officials responsible for the quality
of complaint processing, and those individuals should earnestly attempt to
resolve dissatisfaction with the complaints process as early as possible.
See EEO MD 110 (4-8). Furthermore, we conclude that appellant has failed
to establish how allegation (3) renders him aggrieved. Accordingly,
we find that the three additional allegations do not state a proper
claim pursuant to 29 C.F.R. � 1614.103.
On appeal, appellant admits that the civil action arises out of the
same set of facts as his EEO complaint. We therefore find that both
the statute and the issues raised in the EEO complaint are identical
to those raised in appellant's civil suit. Accordingly, the agency's
final decision is AFFIRMED.
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:
April 1, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 On appeal, appellant, who is a trust fund employee, states that the
primary issue in his civil action is whether the agency is a private
employer under Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. The agency responds that although its position
is that it is not an "executive agency" covered under the federal sector
provisions of 42 U.S.C. � 2000e-16, it nevertheless presumes that the
EEOC retains jurisdiction in this instant case pursuant to EEOC Decision
No. 89-3 (June 27, 1989), wherein the Commission determined that the
Smithsonian Institution is an executive agency of the federal government
within the meaning of Section 717 of Title VII, and therefore all its
employees, including trust fund employees, are within the coverage
of Title VII. The Commission's decision instructed the Smithsonian
Institution to process all pending and future complaints filed by
individuals employed under the trust fund under the EEO program already
in existence with respect to employees in competitive service positions.
This instant complaint was processed under those procedures.
2 Appellant's civil action also alleges discrimination in violation of
the District of Columbia Human Rights Act and 42 U.S.C. �� 1981 and 1985,
statutes which are not enforced by the Commission.