01994953
02-18-2000
James Bankston, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
James Bankston, )
Complainant, )
)
v. ) Appeal No. 01994953
Louis Caldera, ) Agency No. 09904J0070
Secretary, )
Department of the Army, )
Agency. )
____________________________________)
DECISION
On June 2, 1999, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on May 4, 1999,
pertaining to his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, 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. <1> In his complaint,
complainant alleged that he was subjected to discrimination on the bases
of race (African American) and age (68) when:
On January 11, 1999, complainant was rated as unsuccessful for the period
November 1, 1997 through January 4, 1999.
The agency dismissed complainant's complaint on the grounds that
complainant raised the same matter in an appeal to the Merit Systems
Protection Board (MSPB). Specifically, the agency claimed that
complainant included a charge of discrimination in his MSPB appeal
on his removal from federal sector service based on performance.
The agency stated that the performance appraisal that forms the bases
for complainant's present EEO complaint is an integral part of the
basis for removal action appealed to the MSPB. Therefore, the agency
concluded that since complainant elected to proceed in the MSPB, he
was excluded from pursuing the same matter through the EEO process.
The present appeal followed.
In response to complainant's appeal, the agency states that complainant
filed a civil action on August 25, 1999. The agency notes that in
the civil action, complainant alleged employment discrimination on the
basis of age regarding his termination from the agency for failure to
maintain an adequate performance level. Therefore, the agency contends
that complainant's present EEO complaint involved the same matters raised
in the civil action.
The record reveals that complainant filed a civil action in the United
States District Court for the District of Nevada, (CV-N-99-00524-HDM) on
August 25, 1999. In the civil action at issue, complainant alleged that
his termination on February 25, 1999, for failure to meet and maintain an
overall satisfactory level of performance was a pretext for discrimination
on the basis of age and in retaliation for prior protected activity.
Volume 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 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). The record indicates that
complainant's civil action involved a claim of employment discrimination
based on age and in retaliation for prior protected activity, involving
complainant's termination from the agency for failure to maintain
satisfactory performance levels. The Commission finds that complaint's
current appeal before the EEOC concerning his January 11, 1999 performance
appraisal is related to and/or inextricably intertwined with the matters
raised in his civil action since complainant's termination was purportedly
based, in part, on this appraisal.
Volume 64 Fed. Reg. 37, 644, 37, 659 (1999)(to be codified and hereinafter
referred to as 29 C.F.R. � 1614.407) 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 complainant's civil
action was filed prior to the expiration of the 180-day period, this
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 court
dismisses complainant's civil action for premature filing, he may
request that the Commission reinstate his appeal for further processing.
Accordingly, this appeal is hereby DISMISSED. 29 C.F.R. �1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
February 18, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant1On 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.