0120151515
08-09-2016
Jerold Y,1 Complainant, v. Dr. Rajiv Shah, Administrator, Agency for International Development, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jerold Y,1
Complainant,
v.
Dr. Rajiv Shah,
Administrator,
Agency for International Development,
Agency.
Appeal No. 0120151515
Agency No. OCRD-017-15-F
DISMISSAL OF APPEAL
Complainant filed a timely appeal with this Commission from the Agency's final decision dated March 12, 2015, dismissing a formal complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
Complainant, an applicant for an IT Specialist position in the Agency's facility in Washington, D.C., filed the instant formal complaint on February 23, 2015. Therein, Complainant alleged that the Agency subjected him to discrimination on the bases of sex, disability, and age when:
he learned on January 12, 2015, that the Agency did not give the referral list to a selecting manager, for an IT Specialist position.
On March 12, 2015, the Agency issued a final decision, dismissing the formal complaint on the grounds that it states the same claim that was raised in a prior EEO complaint, pursuant to 29 C.F.R. � 1614.107(a)(1).
By letter to Complainant's counsel, dated June 19, 2015, while the matter was pending on appeal, the Agency indicated that it was "retracting" the March 12, 2015 final decision by issuing, finding that its dismissal grounds had been in error. Further, the Agency indicated that the proper dismissal grounds related to 29 C.F.R. � 1614.107(a)(3), because the instant complaint formal complaint involves the same claim addressed in Civil Action No: 1:15-cv-00299-CMH-IDD.
The record reflects that on March 6, 2015, Complainant's attorney filed a complaint in the United States District Court for the Eastern District of Virginia (Civil Action No: 1:15-cv-00299-CMH-IDD) which appears to encompass the claim of non-selection to the IT Specialist position, identified in Agency Case Number OCRD-002-14-F, in the instant complaint.
The instant appeal followed.
ANALYSIS AND FINDINGS
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 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. U.S. Postal Service, EEOC Request No. 05880114 (October 25, 1998).
First, , we note that Complainant and his attorney acknowledged that they raised the subject non-selection in the civil action. First, in a July 25, 2014 letter, Complainant's attorney placed the Agency on notice that Complainant "will exercise his right to file this matter in Federal Court and proceed with a civil action (Option 2). As such, we request that the EEOC issue a Notice of Right to Sue so that we may proceed accordingly."
Second, the record contains a copy of a May 16, 2016 memorandum of opinion by a United States District Judge in Civil Action No. 1:15-cv-00299 which encompasses the matter raised in the instant formal complaint.
Accordingly, Complainant's appeal is hereby DISMISSED. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 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 (S0610)
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 (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's signature
Carlton M. Hadden, Director
Office of Federal Operations
August 9, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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