John W. Garapich, Appellant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionJan 27, 1999
01981088 (E.E.O.C. Jan. 27, 1999)

01981088

01-27-1999

John W. Garapich, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


John W. Garapich, )

Appellant, )

)

v. ) Appeal No. 01981088

) Agency No. DON97-00244-014

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

)

DISMISSAL OF APPEAL

Appellant filed an appeal with this Commission from a final decision of

the agency concerning 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, as amended (ADEA) 29 U.S.C. �621 et seq. The final decision was

issued on October 21, 1997. The appeal was faxed to the Commission

on November 25, 1997.

On August 25, 1997, appellant filed a formal complaint, alleging that

he was the victim of unlawful employment discrimination on the bases of

age and reprisal.

On October 21, 1997, the agency issued a final decision. Therein, the

agency found that appellant's formal complaint was comprised of four

allegations, that were identified in the following fashion:

1. On April 7, 14, and 21, 1997, [appellant] was subjected to a hostile

work environment when his immediate Supervisor, the Site Director, told

several off-color and offensive jokes at meetings at which [appellant]

was present.

2. On unspecified dates, [appellant] feels he has been the victim of a

conspiracy between his immediate Supervisor and the chain-of-command,

up to and including, the Commanding Officer. The record contains an

EEO Counselor Report which indicates that this allegation relates to a

purported conspiracy by upper management to set appellant up for failure

by passing down negative feedback; moving his office; and changing his

duties as directed by agency officials.

3. On an unspecified date in June 1997, [appellant] received performance

standards that suggested he needed to "get rid of the old guys that

needed to retire."

4. On July 15, 1997, [appellant] received a Fully Satisfactory (Level

3) performance rating from his immediate Supervisor, while all other

employees of his component received an Outstanding (Level 5) rating.

The agency accepted allegations 1 and 4 for investigation. The agency

dismissed allegations 3 and 4 for failure to state a claim.

By letter dated January 7, 1999, the agency notified the Commission

that appellant filed a civil action in U.S. District Court regarding

the matters raised in his formal complaint. With its letter, the agency

enclosed a copy of a civil complaint filed by appellant on November 4,

1998 in the U.S. District Court for the Southern District of California

(civil case number 98CV 2024JM LAB). Therein, appellant raised the same

matters that were contained in his EEO complaint, discussed above.

EEOC Regulation 29 C.F.R. �1614.410 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 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, appellant's appeal is

hereby DISMISSED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

Jan. 27, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations