01994712
11-05-1999
Steve Wroge, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service (Pacific Western), Agency.
Steve Wroge, )
Appellant, )
)
v. ) Appeal No. 01994712
) Agency No. 4F-945-0066-99
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(Pacific Western), Agency. )
________________ _____________)
DISMISSAL OF APPEAL
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The final decision was issued on April 2, 1999.
The appeal was received on May 17, 1999.
The record reflects that on March 15, 1999, appellant filed a formal
complaint, alleging that he was the victim of unlawful employment
discrimination on the basis of reprisal when,(1) he was called into his
supervisors office for an official discussion and (2) he was notified
that he did not qualify for the special route inspection requested on
January 9, 1999.
On April 2, 1999, the agency issued a final decision. Therein, the
agency determined that allegation (1) of discrimination failed to state
a claim and therefore, the agency dismissed the allegation. However,
the agency accepted allegation (2) for investigation. Thereafter,
appellant filed an appeal with the Commission, on or about May 17, 1999.
By letter dated July 14, 1999, the agency notified the Commission that
appellant filed a civil action in U.S. District Court. With its letter,
the agency enclosed a copy of a civil summons and
complaint filed by appellant on June 20, 1999, in the U.S. District
Court for the Northern District of California (Civil Case No. C 99-3181)
Appellant's civil complaint addressed the same matters that are the
subject of his EEO complaint, discussed above.
EEOC Regulation 29 C.F.R. �1614.410 provides that the filing of a civil
action �shall terminate Commission processing of the appeal.�
Commission regulations mandate dismissal of the EEO complaint under these
circumstances so as 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, and in order to grant due deference to the authority of Federal
District Court. See, Stromgren v. Department of Veterans Affairs, EEOC
Request No. 05891079 (May 7, 1990); Sandy v. Department of Justice,
EEOC Appeal No. 01893513 (October 19, 1989); Kotwitz v. USPS, EEOC
Request No. 05880114 (October 25, 1988).
EEOC Regulation 29 C.F.R. �1614.408 provides that a complainant may file
a civil action in the U.S. District Court after 180 days from the date
of the filing of the appeal with the Commission if there has been no
final decision rendered by the Commission. The Commission notes, that
while appellant's civil action was filed prior to the expiration of the
180-day filing period, appellant's appeal should be dismissed in view
of the Commission's long-standing practice of conserving resources and
avoiding the potential for inconsistent or conflicting decisions. See,
Posey v. Department of the Navy, EEOC Appeal No. 01951777 (September 21,
1995). If the court dismisses appellant's civil action for premature
filing, he may request that the Commission reinstate his appeal for
further processing. Accordingly, appellant's appeal is hereby DISMISSED.
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:
November 5, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations