0320160059
12-09-2016
Emerson P.,1 Petitioner, v. Ashton B. Carter, Secretary, Department of Defense (Missile Defense Agency), Agency.
Emerson P.,1
Petitioner,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Missile Defense Agency),
Agency.
Petition No. 0320160059
MSPB No. DC-3443-10-0711-B-1
DISMISSAL OF PETITION
On August 8, 2016, Petitioner filed a petition with the Equal Employment Opportunity Commission asking for review of a July 14, 2016, final decision issued by the Merit Systems Protection Board (MSPB) concerning his claim of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
On August 9, 2016, Petitioner filed a civil action (2016-2500) in the United States Court of Appeals for the Federal Circuit. Therein, Petitioner requested a review of the July 14, 2016, final decision issued by the MSPB. On November 28, 2016, the United States Court of Appeals for the Federal Circuit issued an order transferring the matter to the United States District Court for the Eastern District of Virginia (1:16-cv-01468-TSE-TCB). As of December 8, 2016, the matter is still pending before the United States District Court for the Eastern District of Virginia.
29 C.F.R. � 1614.409 provides that filing a civil action "shall terminate Commission processing of the appeal." Commission regulations mandate dismissal of the petition under these circumstances to prevent a petitioner 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, and in order to grant due deference to the authority of the federal district court. See Stromgren v. Dep't of Veterans Affairs, EEOC Request No. 05891079 (May 7, 1990); Kotwitz v. U.S. Postal Serv., EEOC Request No. 05880114 (Oct. 25, 1988).
Accordingly, Petitioner's petition is hereby DENIED and DISMISSED. See 29 C.F.R. � 1614.409.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of 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.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__12/9/16________________
Date
1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website.
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0320150053
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0320160059