David Gault, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W. Region), Agency.

Equal Employment Opportunity CommissionJul 17, 2000
01993430 (E.E.O.C. Jul. 17, 2000)

01993430

07-17-2000

David Gault, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W. Region), Agency.


David Gault v. United States Postal Service

01970705

July 17, 2000

David Gault, )

Complainant, )

)

v. )

William J. Henderson, ) Appeal No. 01970705

Postmaster General, ) 01993430

United States Postal Service ) Agency No. 4-H-310-1144-96

(S.E./S.W. Region), ) 4-H-310-1012-96

Agency. )

____________________________________)

DISMISSAL OF APPEAL

There are now pending before this Commission two appeals filed by

Complainant.<1> The first is an appeal from the October 17, 1996

final agency decision dismissing his complaint of unlawful employment

discrimination in Agency Case No. 4-H-310-1144-96. The second is

an appeal from the May 4, 1999 final agency decision finding no

discrimination in Agency Case No. 4-H-310-1012-96. On April 11,

2000, complainant filed a civil action (identified as Civil Action

No. 5:00-CV-125-1) in the United States District Court for the Middle

District of Georgia. The record further discloses that the allegations

raised therein are the same as those raised in the appeals now before us.

This Commission's regulation 64 Fed. Reg. 37,644, 37,659 (1999)(to be

codified and hereinafter referred to as 29 C.F.R. � 1614.409) provides

that the filing of a civil action "shall terminate Commission processing

of the appeal."

Commission regulations mandate dismissal of these appeals 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). Accordingly, complainant's

appeals are hereby DISMISSED. See 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, MUST BE FILED

WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR

DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF

RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).

All requests and arguments must 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 timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.604). The request or opposition must

also include proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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. 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. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

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:

July 17, 2000

________________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.