03a50033
05-25-2005
Hsing-chow Hwang, Petitioner, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Hsing-chow Hwang v. Department of the Navy
03A50033
May 25, 2005
.
Hsing-chow Hwang,
Petitioner,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Petition No. 03A50033
MSPB No. PH-0752-03-0109-I-1
DISMISSAL OF PETITION
On February 12, 2005, the petitioner filed a timely petition with the
Equal Employment Opportunity Commission (EEOC or Commission) for review
of the final order of the Merit Systems Protection Board (MSPB) dated
March 9, 2004.
The petitioner claimed before the MSPB that he was discriminated against
based on his national origin (Asian) and age (born in 1940)<1> when he
was terminated effective December 6, 2002 under the charge of failure
to retain his eligibility to a sensitive position and revocation of his
security clearance due to his personal conduct. In its initial decision,
the MSPB upheld the removal for the reason charged. It found that the
discrimination claim was not reviewable by the Board because it was
precluded from reviewing allegations of prohibited discrimination in
connection with the suspension or revocation of a security clearance.
In its final order, the Board denied the petitioner's petition for
review of the initial decision. The final order contained a right to
review of his discrimination claim to the EEOC, or if he did not request
such review, the right to file a civil action in the appropriate United
States district court.
On April 12, 2004, the petitioner filed a civil action (identified as
Civil Action No. 1:04-cv-01663-RBK-JBR) in the United States District
Court for the New Jersey (Camden).<2> The record further discloses that
the claims raised therein are the same as those raised in his appeal to
the MSPB and the instant petition before the EEOC. The regulation found
at 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 the EEO petition under these circumstances so as to
prevent the petitioner 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, the petitioner's petition is hereby dismissed.
See 29 C.F.R. � 1614.409.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)
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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 25, 2005
__________________
Date
1A summary of a telephonic prehearing conference report by an MSPB
Administrative Judge (AJ) and the MSPB's initial decision indicated that
the petitioner only raised national origin discrimination. However,
the petitioner's statement of facts and issues, filed recently before
the prehearing conference report, indicated he raised national origin
and age discrimination.
2The court's electronic docket indicates that as of May 18, 2005, the
civil action was still pending.