Christopher Hacias, Appellant,v.Janet Reno, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionOct 8, 1999
01971631 (E.E.O.C. Oct. 8, 1999)

01971631

10-08-1999

Christopher Hacias, Appellant, v. Janet Reno, Attorney General, Department of Justice, Agency.


Christopher Hacias, )

Appellant, )

) Appeal No. 01971631

v. ) Agency No. D 96 3380

)

Janet Reno, )

Attorney General, )

Department of Justice, )

Agency. )

)

______________________________)

DISMISSAL OF APPEAL

By Notice of Appeal dated December 17, 1996, appellant filed an appeal

with this Commission from the December 2, l996 final agency decision

(FAD) dismissing his EEO complaint of unlawful employment discrimination.

On May 21, 1997, appellant filed a civil action

(identified as 97C3688) in the United States District

Court for the Northern District of Illinois.

The record further discloses that the allegations

raised therein are the same as those raised in the

instant complaint. 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 the 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 U.S. District Court after 180 days from the date of

filing an appeal with the Commission if there has been

no final decision by the Commission. The Commission

notes that while appellant's civil action was filed

prior to the expiration of the 180-day 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 cour dismisses appellant's civil action

for premature filing, he may request the Commission

reinstate his compliant for further processing.

Accordingly, appellant's March 13, 1998 appeal is

hereby DISMISSED. See 29 C.F.R. �1614.410.

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:

October 8, 1999

__________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations