Lenard A. Footland, Complainant,v.William M. Daley, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity CommissionMay 18, 2000
01992675 (E.E.O.C. May. 18, 2000)

01992675

05-18-2000

Lenard A. Footland, Complainant, v. William M. Daley, Secretary, Department of Commerce, Agency.


Lenard A. Footland, )

Complainant, )

)

v. ) Appeal No. 01992675

) Agency No. 97-56-0048

) Hearing No. 100-97-7731X

)

William M. Daley, )

Secretary, )

Department of Commerce, )

Agency. )

___________________________________ )

DISMISSAL OF APPEAL

By Notice of Appeal postmarked December 14, 1998, complainant filed an

appeal with this Commission from the November 17, 1998 final agency

decision concerning complainant's non-selection for the position of

Administrative Patent Judge.

By letter dated November 9, 1999, the agency notified the Commission

that the complainant had filed a civil action (Civil Action No 99-1360)

in U.S. District Court for the Eastern District of Virginia. The record

further discloses that the allegation raised therein is the same as that

raised in the instant complaint. Volume 64 Fed. Reg. 37,644, 37,659

(1999)(to be codified and hereinafter referred to as 29 C.F.R. �1614.409)

provides that the filing of a civil action �shall terminate Commission

processing of the appeal.�<1> 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.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

May 18, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

1 On November 9, 1999, revised

regulations governing the EEOC's federal sector complaint process

went into effect. These regulations apply to all federal sector

EEO complaints pending at any stage in the administrative process.

Consequently, the Commission will apply the revised regulations found

at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.