0120064194
11-29-2006
Joseph R. Lujan, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.
Joseph R. Lujan,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01200641941
Agency No. FS-2002-00076 (formerly 020562)
Hearing No. 350-2003-08079X
DECISION
Complainant filed an appeal with this Commission from the June 20,
2006 final agency decision which dismissed his 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. In his
complaint, complainant alleged that he was subjected to discrimination
and harassment on the bases of national origin (Hispanic) and reprisal
for prior protected EEO activity under Title VII when:
1. In January 2002, his request to be removed from a restrictive schedule
was denied;
2. In January/February 2002, he was given unreasonable deadlines
to complete assignments and was chastised for not completing the
assignments;
3. In January 2002, he was chastised for not providing a doctor's note
regarding his sick leave absence;
4. In January/February 2002, his request for overtime, compensatory time
or credit time was denied;
5. His requests to attend the Professional Wildlife and Fishery Society
meetings on February 7-10, 2002, and training on Interagency Consultation
for Endangered Species Management were denied;
6. The first level supervisor alienated him from the Acting Ranger;
7. The first-level supervisor reminded him that he failed to sign in and
out for lunch to satisfy the restrictive work schedule requirements; and
8. The first level supervisor placed him on a Performance Improvement
Plan. (PIP).
On October 3, 2003, complainant filed a civil action (identified as
Civil Action No. 1:03cv1163) in the United States District Court for
the District of New Mexico. On October 9, 2003, complainant's attorney
notified the EEOC Administrative Judge (AJ) that he was withdrawing
complaint's request for a hearing because of his filing of the case in
District Court, and he provided the AJ with a copy of the civil complaint,
however there was no evidence that it had actually been filed with the
court. On October 15, 2003, the AJ dismissed the hearing request and
ordered the agency "to issue a final agency decision unless Complainant
presents evidence to the Agency that the lawsuit has been filed in Federal
District Court, in which case the Agency loses jurisdiction of the case."
The agency issued a final agency decision dated June 20, 2006, dismissing
the case under 29 C.F.R. � 1614.107(a)(3).
The regulation set forth at 29 C.F.R. � 1614.107(a)(3) allows for the
dismissal of a complaint that is pending in a United States District
Court in which the complainant is a party. 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 Shapiro
v. Department of the Army, EEOC Request No. 05950740 (October 10, 1996);
Stromgren v. Department of Veterans Affairs, EEOC Request No. 05891079
(May 7, 1990); Kotwitz v. United States Postal Service, EEOC Request
No. 05880114 (October 25, 1988). A check of the U.S. District Court Civil
Docket for the District of New Mexico indicates that complainant filed
suit under Title VII against the agency on October 3, 2003. The record
further discloses that the claims raised therein, as detailed in the
copy of the civil court complaint submitted to the AJ, are the same as
those raised in the instant complaint. Accordingly, the agency's final
agency decision dismissing the complaint is hereby affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 29, 2006
__________________
Date
1 Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal number.
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0120064194
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064194