Shawn Keeley, Appellant,v.I. Michael Heyman, Secretary, Smithsonian Institution, Agency.

Equal Employment Opportunity CommissionApr 1, 1999
01982447 (E.E.O.C. Apr. 1, 1999)

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.