0120090794
05-06-2009
John G. Pedicini, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
John G. Pedicini,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120090794
Agency No. FNCS 2006-00124
Hearing No. 520-2007-00133X
DISMISSAL OF APPEAL
The record indicates that on December 12, 2005, complainant filed an EEO complaint (Agency No. FNCS 2006-00124). Therein, complainant claimed that the agency subjected him to discrimination in reprisal for prior EEO activity when:
1. on September 16, 2005, he was denied the opportunity to assume duties as Section Chief on a rotational basis;
2. on or about September 26, 2005, he was denied a detail or temporary promotion to a GS-501-13, Supervisory Financial Management Specialist position;
3. on or about September 26, 2005, he was denied a detail or temporary promotion to a GS-2210-13, Supervisory Computer Specialist position; and
4. on October 5, 2005, he was denied the opportunity to serve as Acting Financial Management Director.
Following the investigation into his formal complaint, complainant requested a hearing before an EEOC Administrative Judge (AJ). The record indicates, however, that on June 29, 2007, complainant signed a document entitled "Motion to Withdraw EEOC Complaint." The Agency Number that was listed in the document was identified as FNCS 2006-00124. On July 19, 2007, the AJ notified the agency's EEO Compliance and Appeals Coordinator that Agency No. FNCS 2006-00124 had been withdrawn, terminating processing of that case. Specifically, the AJ noted that complainant "moved to withdraw his EEO complaint before the Commission pending the filing of a civil action in District Court."
On October 1, 2008, the agency issued a final decision. Therein, the agency dismissed complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(3) because he filed a civil action in the U.S. District Court of Massachusetts (Civil Action No. 04-12395-JLT) which includes the same issue raised in the instant complaint. Specifically, the agency stated that on April 16, 2007, complainant filed a civil action seeking to consolidate the instant complaint with the civil action.
On appeal, complainant disputes the agency's October 1, 2008 final decision and requests that the Commission reverse the final decision and remand "the Complaint (#FNCS-2006-00124 to the Agency, and for other such and further relief to which the Complainant justly may be entitled." Complainant further argues that the instant complaint "never became the basis of the civil action. The agency cannot escape this fact. The complaint was never adjudicated."
In response, the agency requests that the Commission to dismiss complainant's appeal because he filed a request with the AJ to withdraw the instant complaint and in accordance with his request, the AJ dismissed the complaint.
Upon review of the matter, the Commission dismisses the instant appeal. On appeal, complainant seeks to revoke the withdrawal of the instant complaint because he claims the formal complaint was never part of his civil action. However, we note that the record contains the withdrawal notice dated June 29, 2007, in which complainant states that he "hereby withdraw the above-entitled Complaint from the EEOC complaint process." Consequently, we find that complainant validly withdrew Agency No. FNCS 2006-00124, depriving the Commission of jurisdiction over the matter. The record contains no evidence reflecting that the agency mislead complainant into withdrawing Complaint No. FNCS 2006-00124. Accordingly, complainant's appeal is hereby DISMISSED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 77960, Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 6, 2009
__________________
Date
2
0120090794
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120090794