Lester Moody, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionAug 27, 2009
0120091713 (E.E.O.C. Aug. 27, 2009)

0120091713

08-27-2009

Lester Moody, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.


Lester Moody,

Complainant,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120091713

Agency No. 200403132008102962

DISMISSAL OF APPEAL

Complainant filed an appeal with this Commission from the February 12,

2009 final agency decision finding no discrimination with regard to

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., Section 501 of the Rehabilitation Act of

1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and

the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq. Complainant alleged that he was subjected to

discrimination on the bases of race, national origin, and color (black,

African-American, brown, sex (male), disability, and age (50) when:

1. on May 8, 2008, he learned that he was initially not referred for

the position of Rating Veterans Career Intern, GS-0996-09, position,

and [after being referred],

2. on or about June 2, 2008, he was not hired for the above position.

On May 29, 2009, complainant filed a civil action (identified as Civil

Action No. 1:09cv1428) in the United States District Court for the

District of Maryland. The record further discloses that the claims in

the instant complaint are within the scope of those raised in the civil

action.1 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 (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

August 27, 2009

__________________

Date

1 The court's electronic docket reveals that as of August 26, 2009,

the civil action is still pending.

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2

0120091713

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

3

0120091713