Sylvia Stromgren, Appellant,
v.
Edward J. Derwinski, Secretary, Department of Veterans Affairs, Agency.

Request No. 
05891079
Appeal No. 01893066
Agency No. 88-184-D-1

May 07, 1990

GRANTING OF REQUEST TO REOPEN

INTRODUCTION

On September 5, 1989, Sylvia Stromgren (hereinafter referred to as appellant) initiated a request to the Equal Employment Opportunity Commission (EEOC) to reopen and reconsider the decision in Sylvia Stromgren v. Edward J. Derwinski, Secretary, Department of Veterans Affairs, EEOC Appeal No. 01893066 (August 9, 1989). EEOC Regulations provide that the Commission may, in its discretion, reopen and reconsider any previous decision when the party requesting reopening submits written argument or evidence which tends to establish one or more of the three criteria prescribed by 29 C.F.R. 1613.235(b). Appellant appears to base her request on 29 C.F.R. 1613.235(b)(2) (the previous decision involves an erroneous interpretation of law or regulation or a misapplication of established policy). For the reasons set forth herein, appellant's request is granted.

ISSUE PRESENTED

The issue presented herein is whether the Commission's previous decision erroneously interpreted the law or misapplied established policy in affirming the agency's decision which cancelled appellant's complaint on the grounds that she had filed a civil action.

BACKGROUND

Appellant filed a formal EEO complaint generally alleging that she was discriminated against based on her sex when she was 'harassed: confronted with frivolous, self-contradictory accusations with a strong taint of malicious intent, with deliberate entrapment attempts, with abusive counselings' and ultimately fired for 'unsatisfactory service.' Specifically, appellant listed seven separate instances of alleged discrimination: (1) unsatisfactory performance evaluations in 1975 and 1977 at the Veterans Administration Medical Center, Knoxville, Iowa (KVAMC); (2) removal from KVAMC in 1977; (3) unfavorable reference from KVAMC in 1977; (4) unfavorable references from KVAMC in 1981; (5) nonselection for the position of psychiatric head nurse in March 1983 at the Veterans Administration Medical Center, Iowa City, Iowa (ICVAMC); (6) nonselection for a research assistant position at Iowa City on January 10, 1986; and, (7) a statement to appellant by the head nurse, ICVAMC, on or about January 15, 1986, that she should not seek further employment with the agency. The agency accepted allegation #7 for processing but rejected allegations #s 1-5 on the grounds that appellant failed to timely contact an EEO Counselor, and allegation #6 on the grounds that it was not within the purview of EEOC regulations. Thereafter, appellant appealed the agency's decision to this Commission contending that her allegations comprised a continuing violation of Title VII.

In its decision on appellant's initial appeal, the Commission affirmed the agency's rejection of allegations #s 1-5 but found that allegation #6 was within the purview of EEOC regulations in that appellant alleged a specific adverse employment action which she attributed to sex discrimination. Accordingly, the Commission remanded allegation #6 to the agency for processing. See Sylvia Stromgren v. Veterans Administration, EEOC Appeal No. 01871549 (March 7, 1988).[FN1]

Meanwhile, appellant filed a civil action, Stromgren v. Turnage, U.S.D.C., S.D. Iowa, Civil No. 88-184-D-1, alleging that: 1) she was 'wrongfully terminated from employment within the VA system;' and, 2) the agency had given bad references about her to other potential employers. Consequently, the agency did not investigate allegations #s 6 and 7 but, rather, issued a new final agency decision (FAD) notifying appellant that her complaint was being cancelled pursuant to 29 C.F.R. 1613.215(a)(3).[FN2] Although the agency pointed out that EEOC regulations 'do not directly address what to do if a lawsuit raises some, but not all, of the allegations raised in administrative processing,' it relied on 'supplementary information' released in conjunction with the regulations which states:

Cancellation of a complaint where a civil action is filed was supported by the comments, but some commenters wanted the complaint processing resumed if the court rejected the complaint or if the court allegations did not contain all the allegations of the administrative complaint. The Commission is not adopting those comments because they are contrary to the purpose of the regulatory provision, i.e., they would permit administrative and judicial processing to occur together. 52 Fed. Reg. 41920 (Oct. 30, 1987).

The agency therefore apparently reasoned that allegations #s 6 and 7 should not be processed in the EEO forum but, rather, should be adjudicated as part of appellant's civil action. [FN3]

Thereafter, appellant timely appealed the agency's cancellation of her complaint to this Commission. In its previous decision, the Commission affirmed the agency's decision and dismissed appellant's appeal.

In her RTR, appellant asserts that the Commission should direct the agency to process her allegations since her civil action has been dismissed. Appellant also again challenges the agency's rejection of five of her allegations as untimely stating that at the time of her removal in 1977, she was unaware that there was a law prohibiting sex discrimination.

In response to appellant's RTR, the agency asserts that appellant's request should be denied on the grounds that it does not satisfy any of the criteria of 29 C.F.R. 1613.235(b).

ANALYSIS AND FINDINGS

After a careful review of the record, our previous decision, appellant's RTR, and the agency's response thereto, we find that appellant has shown that our previous decision erroneously interpreted the law and/or misapplied established policy in affirming the agency's decision which cancelled the remaining two allegations of her complaint.

Pursuant to EEOC Regulation 29 C.F.R. 1613.283, the filing of a civil action by an employee or applicant on matters raised in an EEO complaint terminates the processing of that complaint. EEOC Regulation 29 C.F.R. 1613.215(a) (3) therefore provides that an agency shall cancel any complaint that is the basis of a pending civil action.

While the agency correctly pointed out that the regulations do not expressly address how to handle situations where the civil action raises some, but not all, of the allegations raised in the EEO complaint, the regulations seem clearly intended to prevent a complainant from simultaneously pursuing both administrative and judicial remedies on the same matters so as to avoid the duplication of resources and the possibility of inconsistent and conflicting decisions. The purpose of the regulations, however, is not to deprive a complainant of the right to adjudicate any of his/her viable claims. [FN4] Therefore, it appears logical that an agency may cancel a complaint only in instances where the civil action and the EEO complaint raise the same allegation(s).

In the present case, appellant filed a civil action alleging that her removal was discriminatory and that, because of her sex, the agency was giving bad references about her to potential employers. By contrast, the allegations remanded to and accepted by the agency for processing concern a nonselection (allegation #6) and a statement allegedly made by a VA official discouraging appellant's attempts at reemployment with the agency (allegation #7). We therefore find that since appellant's civil action and allegations #s 6 and 7 clearly raise separate and distinct matters, the agency erroneously cancelled that portion of appellant's EEO complaint. With respect to allegations #s 1-5, however, the Commission's decision affirming the agency's rejection of that portion of appellant's complaint is final (EEOC Request No. 05890547, October 18, 1988) and therefore appellant has no further right to administratively appeal that decision. Appellant may, however, present evidence relating to the five rejected allegations as relevant background evidence to prove a violation as to either of the two accepted allegations.

CONCLUSION

After a review of appellant's request to reopen, the previous decision, and the entire record, the Commission finds that appellant's request satisfies the criteria of 29 C.F.R. 1613.235(b)(2). It is therefore the decision of the Commission to REVERSE our decision in EEOC Appeal No. 01893066 (August 9, 1989) and REMAND appellant's complaint for processing in accordance with the Order below. There is no further right of administrative appeal from a decision of the Commission on a request to reopen. This decision, however, does not constitute a decision on the merits of allegations #s 6 and 7 of appellant's complaint.

ORDER

The agency shall accept, investigate, and process allegations #s 6 and 7 pursuant to 29 C.F.R. 1613.215-1613.222. The agency shall notify the Commission and the appellant no later than 30 calendar days from the date it receives this decision that it has accepted both allegations and indicate the name and telephone number of the investigator to whom the complaint has been assigned. The investigation shall be completed and a proposed disposition issued within 180 calendar days of the date of this decision unless the matter is otherwise resolved within that timeframe. A copy of the relevant document finalizing the complaint must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION DECISION

Under EEOC Regulations, compliance with the Commission's corrective action is mandatory. The agency must report completion of the corrective action to this Commission within 60 calendar days of receipt of the decision. See 29 C.F.R. 1613.237(b), (c) (1988). The agency's report should be forwarded to the Director of Compliance, Office of Review and Appeals, P.O. Box 19848, Washington, D.C. 20036. A copy of the report should be sent to the appellant.

STATEMENT OF APPELLANT'S RIGHTS - ON REQUEST TO REOPEN

RIGHT TO FILE A CIVIL ACTION

You are hereby notified that there is no further right of appeal from a decision of the Commission on a Request to Reopen. You have the right to file a civil action in an appropriate United States District Court WITHIN THIRTY (30) DAYS of the date that you receive this decision. As to any claim based on the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a), you MAY have up to six years after the right of action first accrued in which to file a civil action. See Lehman v. Nakshian, 453 U.S. 156 (1981); 29 U.S.C. 633a(f); and 2 8 U.S.C. 2401(a). If you file a civil action, YOU MUST NAME THE PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT HEAD AS THE DEFENDANT IN THE COMPLAINT. Agency or department means the national organization, and not the local office, facility or department in which you might work. DO NOT JUST NAME THE AGENCY OR DEPARTMENT. You must also state the title of the official agency head or department head. Failure to provide the NAME AND OFFICIAL TITLE of the agency head or department head, may result in the dismissal of your case. Fed. R. Civ. P. 25 (d)(2).

RIGHT TO COUNSEL

If you decide to file a civil action and do not have or cannot afford the services of an attorney, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., as amended, and the Rehabilitation Act of 1973, 29 U.S.C. Sec. 791 and Sec. 794c, as amended, you may request that the Court appoint an attorney to represent you and that the Court permit you to file the civil action without payment of fees, costs or security. Your request must be FILED WITH THE COURT WITHIN THIRTY (30) DAYS from the date that you receive the Commission's decision.

FOR THE COMMISSION:

Frances M. Hart
Executive Officer
Executive Secretariat

[FN1]. In its decision on appellant's request to reopen (RTR), the Commission affirmed its previous decision finding that appellant failed to show that the Commission misinterpreted the law or misapplied established policy in affirming the agency's rejection of five of her allegations as untimely. See Sylvia Stromgren v. Thomas K. Turnage, Administrator of the Veterans Administration, EEOC Request No. 05880547 (October 18, 1988).

[FN2]. EEOC Regulation 29 C.F.R. 1613.215(a)(3) provides that the agency shall reject or cancel a complaint '(t)hat is the basis of a pending civil action in a United States District Court in which the complainant is a party.'

[FN3]. In its order issued on July 31, 1989, however, the court granted the agency's motion to dismiss appellant's allegations as untimely.

[FN4]. We note that this is precisely what would result if the agency's decision is upheld (i.e., appellant would have no forum in which to pursue the alleged discriminatory acts raised in allegations #s 6 and 7).