Appellant, v. Jesse Brown, Secretary, Department of Veterans Affairs, Agency.

Steven J. Krumholz, Appellant,

v.

Jesse Brown, Secretary, Department of Veterans Affairs, Agency.

Appeal No.

01934799

Agency No. 5617

December 15, 1993

DECISION

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., and section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq. The final agency decision was dated August 17, 1993. The appeal was postmarked September 15, 1993. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)), and is accepted in accordance with EEOC Order No. 960, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed appellant's complaint on the grounds that appellant filed a civil action on the same issue.

BACKGROUND

On January 1, 1993, appellant filed a formal complaint alleging that the agency discriminated against him on the bases of disability (permanent low back injury) and reprisal (prior EEO activity) when he was reassigned from the position of Staff Assistant to the Director to Staff Assistant to the Associate Director of the agency facility in which he worked. [FN1] Appellant alleged that the agency reassigned him after he submitted a report to the agency's Inspector General accusing the Director of plagiarizing his work and claiming authorship of reports that appellant prepared. As corrective action, appellant sought revocation of his reassignment and a return to his original position as Staff Assistant to the Director.

In its final decision, the agency dismissed appellant's complaint on the grounds that he is a party in a pending federal civil action, Mitchum v. Hurt, No. 93-0204 (W.D. Pa., filed February 11, 1993), in which he alleged that agency officials reassigned him in violation of his constitutional rights. The agency noted that the federal civil action seeks appellant's reinstatement as Staff Assistant to the Director.

On appeal, appellant contends that the federal civil action involves issues that are different from those raised in the instant EEO complaint. Specifically, appellant states that the civil action concerns the quality of care provided patients in the facility in which he works and alleges violations of the constitutional rights of the plaintiffs. Appellant contends that '[a]lthough the prayer's [sic] for relief may be similar they should have no basis for rejection of this complaint.'

In its appeal statement, the agency states that although Mitchum v. Hurt does not involve Title VII or other equal employment statutes, it raises the issue of appellant's reassignment and seeks revocation of the reassignment as corrective action. The agency, citing Bucci v. Department of Education, EEOC Request No. 05890459 (January 30, 1990), asserts that the Commission does not require that a federal action involve an EEO statute as a predicate to rejection or dismissal of an EEO complaint on the grounds that a federal action is pending on the same matter.

The record includes a copy of the complaint filed in Mitchum v. Hurt. The complaint identifies appellant as a named plaintiff. It asserts that certain named agency officials deprived appellant and other plaintiffs of their rights under the First, Fifth, and Fourteenth Amendments to the Constitution, in violation of 42 U.S.C. 1983. With respect to appellant's claim, the complaint alleges the following at paragraph 124:

c. Although his technical job title is Health System Specialist, [appellant] has held the position of Staff Assistant to the Director, and Public Affairs Officer, positions which he performed continuously from August, 1986, until September 21, 1992;

d. On September 21, 1992, he was purportedly reassigned on a temporary basis to the newly-created position of Staff Assistant to the Associate Director . . . and on October 28, 1992, such purported temporary reassignment was made permanent.

Paragraphs 130-31 address appellant's allegations that the Director plagiarized articles that he wrote and state that appellant reported the plagiarism to the agency's Inspector General and to the American College of Healthcare Executives. Paragraphs 140-43 note that appellant filed an informal EEO complaint with the agency concerning his reassignment; that he subsequently filed a formal EEO complaint; that he filed an informal grievance; and that he subsequently filed a formal grievance pursuant to Merit Systems Protection Board rules.

The prayer for relief in the federal civil action seeks, interalia, the following:

a preliminary injunction directing the defendants 'to cease and desist from all actions of retaliation, harassment and reprisal' against appellant;

an order directing the defendants to reinstate appellant to the position he held before the agency reassigned him.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. �1614.107(c) provides that the agency shall dismiss an EEO complaint that is the basis of a civil action filed in a United States District Court where the EEO complainant is a party, provided that at least 180 days have passed since the filing of the administrative complaint. 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. 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). The proper inquiry to determine whether dismissal is warranted is whether the issues in the EEO complaint and the civil action are the same, that is, whether the acts of alleged discrimination are identical. Bellow v. U.S. Postal Service, EEOC Request No. 05890913 (November 27, 1989). The factual allegations, then, and not the bases or the precise relief requested should be the crux of the legal analysis here.

Based on the record herein, the Commission finds that the agency improperly dismissed appellant's EEO complaint. Although the Commission stated in Bucci v. Department of Education that an agency may dismiss an EEO complaint where the underlying claim in the complaint concerns the same underlying claim in the federal civil action, subsequent Commission decisions have further refined the standard to focus on whether the underlying claim in both forums allege identical acts of discrimination. See, e.g., Curtis v. U.S. Postal Service, EEOC Request No. 05910400 (May 9, 1991); Bellow. While the record herein makes plain that appellant's federal civil action and EEO complaint both concern his reassignment and both seek his reinstatement to his original position, the federal civil action raises factual allegations that are different from the allegations raised in appellant's complaint. Specifically, the federal civil action does not allege that the agency discriminated against him on a basis recognized under either Title VII or the Rehabilitation Act, which is the allegation that forms the crux of appellant's EEO complaint. In this regard, requiring the agency to process the EEO complaint will not waste resources or create the potential for inconsistent or conflicting decisions because appellant's federal civil action and EEO complaint ultimately address different issues.

CONCLUSION

Accordingly, the agency's decision to dismiss appellant's complaint on the grounds that he filed a federal civil action on the same matter is REVERSED. The complaint is hereby REMANDED for further processing in accordance with this decision and the applicable regulations.

ORDERED (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 (K1092)

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.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1092)

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.

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:

Ronnie Blumenthal

Director

Office of Federal Operations

[FN1]. According to the agency's final decision, appellant's January 1, 1993 complaint was assigned Agency Interim No. 5617. Appellant's appeal used another interim complaint number, Agency Interim No. 4943, which the agency states concerned a complaint that appellant filed on February 17, 1993. The agency notes that it did not issue a final decision on Agency Interim No. 4943 until September 17, 1993, and that appellant received the decision on September 22, 1993, after he filed the instant appeal. Based on the foregoing, we agree with the agency that appellant's appeal concerns Agency Interim No. 5617.