Larry R. James, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionDec 4, 2000
01991219 (E.E.O.C. Dec. 4, 2000)

01991219

12-04-2000

Larry R. James, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Larry R. James v. Department of the Navy

01991219

December 4, 2000

.

Larry R. James,

Complainant,

v.

Richard J. Danzig,

Secretary,

Department of the Navy,

Agency.

Appeal No. 01991219

Agency No. 96-55304-001;

97-55304-001;

97-55304-002

DISMISSAL OF APPEAL

Complainant filed an appeal with this Commission from the October 30,

1998 agency decision finding no discrimination.

On November 17, 2000, the Commission was notified that complainant filed

a civil action (identified as Civil Action No. 00CVZ017J (AJB)) in the

United States District Court for the Southern District of California.

The record further discloses that the allegations raised therein are the

same as those raised in the above complaints. 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. USPS, EEOC Request No. 05880114 (October

25, 1988). Accordingly, complainant's appeal is hereby DISMISSED.

See 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

December 4, 2000

__________________

Date