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

Request No. 05940346
Appeal No. 
01934799
Agency No. 5617

October 21, 1994

DECISION ON REQUEST FOR RECONSIDERATION

INTRODUCTION

On January 13, 1994, the Department of Veterans Affairs (hereinafter referred to as the agency) initiated a request to the Equal Employment Opportunity Commission (EEOC or Commission) to reconsider the decision in Steven J. Krumholz v. Jesse Brown; Secretary, Department of Veterans Affairs, EEOC Appeal No. 01934799 (December 15, 1993), received on December 17, 1993. EEOC regulations provide that the Commission may, in its discretion, reconsider any previous decision when the party requesting reconsideration submits written argument or evidence which tends to establish one or more of the following criteria: 29 C.F.R. §1614.407(c)(1) (new and material evidence is available that was not readily available when the previous decision was issued); 29 C.F.R. §1614.407(c)(2) (the previous decision involved an erroneous interpretation of law, regulation or material fact, or misapplication of established policy); and 29 C.F.R. §1614.407(c)(3) (the decision is of such exceptional nature as to have substantial precedential implications). The agency bases its request on 29 C.F.R. §1614.407(c)(2) and (3). For the reasons set forth herein, the agency's request is denied.

ISSUE PRESENTED

The issue presented is whether the previous decision properly reversed the agency's final decision which dismissed appellant's complaint on the grounds that appellant filed a civil action on the same issue.

BACKGROUND

Appellant filed a formal complaint dated January 1, 1993. In his complaint appellant alleged that he was discriminated against because of his physical disability (permanent low back injury) and his prior EEO participation when he was permanently reassigned from the position of Staff Assistant on October 28, 1992. On August 17, 1993, the agency issued its Final Agency Decision (FAD) dismissing appellant's complaint pursuant to EEOC Regulation 29 C.F.R. §1614.107(c).[FN1] In the FAD, the agency noted that 180 days had elapsed since appellant filed his EEO complaint. The agency also noted that claims about the reassignment were raised in the case of Kenneth L. Mitchum, et al. v. Reedes Hurt, et al., U.S.D.C. W.D. Pa., Civil No 93-0204, in which appellant was named as one of the plaintiffs. Specifically, the agency stated that paragraphs 124(d) of the civil action as well as in the prayers of relief addressed appellant's reassignment and his request for revocation of the reassignment. Appellant initiated an appeal of that decision.

The previous decision reversed the FAD and remanded appellant's complaint to the agency for continued administrative processing. Noting that appellant's civil action and EEO complaint both concerned his reassignment and both sought its revocation, the previous decision concluded that the civil action raised factual allegations that were different from the allegations raised in appellant's complaint. For instance, the previous decision noted that the civil action did not allege that the agency discriminated against appellant on a basis recognized under either Title VII or the Rehabilitation Act, the crux of appellant's EEO complaint. The civil action claimed jurisdiction under 28 U.S.C. §§ 1331 and 1343(3), 42 U.S.C. §§ 1983 and 1988 and 5 U.S.C. §2302, asserting that named agency officials deprived appellant and other plaintiffs of their rights under the First, Fifth, and Fourteenth Amendments to the Constitution, and in violation of 42 U.S.C. 1983.

In the agency's request to reconsider (RTR), the agency reiterated that it relied on Bucci v. Department of Education, EEOC Request No. 05890459 (January 30, 1990) in dismissing appellant's complaint. In Bucci the Commission held that both the Privacy Act suit filed by the complainant and the administrative discrimination complaint concerned the same nexus of facts. As such the Commission concluded in Bucci that the court will 'presumably consider a variety of factors in ruling on appellant's civil action, including the alleged violation in' the complainant's EEO complaint. The agency argued that there is a closer relationship between the employment discrimination laws and the various other Civil Rights statutes cited in Mitchum v. Hurt than there is between the employment discrimination laws and the Privacy Act. [FN2] The agency argued that under both sets of laws a showing of bad intent is necessary for a finding of a violation.

The agency argued that the previous decision's reliance on Curtis v. United States Postal Service, EEOC Request No. 05910400 (May 9, 1991) and Bellow v. United States Postal Service, EEOC Request No. 05890913 (November 27, 1989) in finding that the agency erred in dismissing appellant's EEO complaint was misplaced. The agency explained that both of these cases focus on whether the lawsuit and the administrative complaint concern the same acts. In Bellow, the Commission held that the lawsuit did not, in fact, encompass the particular personnel actions set forth in the complaints cancelled by the agency. In Curtis, the lawsuit and the EEO complaint concerned the same matter but different bases of discrimination. The Commission concluded in Curtis that the factual allegations and not the bases of discrimination are determinative. As such, the agency argued that Bucci is still good law and that the factors that led the Commission to its decision in Bucci are strongly present in the present matter.

In response to the agency's RTR appellant stated that the agency's request should be denied. Appellant noted that the agency filed a motion to dismiss the civil action. In the motion to dismiss the agency represented that appellant could pursue the matter through the administrative process if the civil action was dismissed. Appellant asserted that now the agency is maintaining that he has recourse through the court. Appellant urged that the agency's position is inconsistent and their request should be denied.

ANALYSIS AND FINDINGS

The Commission may, in its discretion, reconsider any previous decision when the party requesting reconsideration submits written argument or evidence which tends to establish that at least one of the criteria of 29 C.F.R. §1614.407(c) is met. In order for a case to be reconsidered, the request must contain specific information which meets the criteria referenced above. We note that a request to reconsider is not a form of second appeal.

We have reviewed the agency's RTR in the present matter and find that the agency has failed to present evidence or persuasive argument which demonstrates that the previous decision involved an erroneous interpretation of law, regulation or material fact, or a misapplication of established policy.

Principally the agency argues that it had the authority to cancel appellant's complaint because 180 days had elapsed from the date appellant filed his complaint and the reassignment was an issue in that civil action. We find that it did not. Commission Regulation 29 C.F.R. §1614.410 states that filing a civil action under 29 C.F.R. §1614.408 shall terminate Commission processing of the appeal. EEOC Regulation 29 C.F.R. §1614.408 states, in pertinent part, a complainant who has filed an individual complaint, an agent who has filed a class complaint or a claimant who has filed a claim for individual relief pursuant to a class complaint is authorized under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (Title VII), the Age Discrimination in Employment Act of 1967, as amended, 42 U.S.C. § 621 et seq. (ADEA), and §501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §791 (Rehabilitation Act) to file a civil action in an appropriate United States District Court. Thus, since appellant's complaint was not filed pursuant to the specific statutes listed in 29 C.F.R. §1614.408 the agency erred in dismissing his complaint pursuant to EEOC Regulation 29 C.F.R. §1614.107(c).

Having reached a conclusion that the agency erred in dismissing appellant's complaint, we need not address its arguments that the previous decision erred in relying on Curtis v. United States Postal Service, and Bellow v. United States Postal Service.

CONCLUSION

After a review of the agency's request for reconsideration, the previous decision, and the entire record, the Commission finds that the agency's request fails to meet the criteria of 29 C.F.R. §1614.407(c), and it is the decision of the Commission to deny the agency's request. The agency's final decision is hereby REVERSED. The decision in EEOC Appeal No. 01934799 (December 15, 1993) remains the Commission's final decision. The agency shall comply with the Order restated below. There is no further right of administrative appeal on a decision of the Commission on this Request for Reconsideration.

ORDER (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 acknowledgement 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 APPELLANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION

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 (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:

Frances M. Hart
Executive Officer
Executive Secretariat

[FN1]. This regulation states, in pertinent part, that the agency shall dismiss a complaint or a portion of a complaint that is the basis of a pending civil action in a United States District Court in which the complainant is a party provided that at least 180 days have passed since the filing of the administrative complaint, or that was the basis of a civil action decided by a United States District Court in which the complainant was a party.

[FN2]. The agency explained that it relied on the Bucci case because it found no cases applying 29 C.F.R. §1614.107(c). The agency further explained that it looked to the Commission's application of the predecessor regulation, 29 C.F.R. §1613.215(a) to lawsuits filed under Title VII or other laws prohibiting employment discrimination. It found none.