0320150074
01-19-2016
Michal J.,1 Petitioner, v. Ashton B. Carter, Secretary, Department of Defense (Defense Logistics Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Michal J.,1
Petitioner,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.
Petition No. 0320150074
MSPB No. SF0752140310I1
DISMISSAL OF PETITION
On March 17, 2015, Petitioner filed a petition with the Equal Employment Opportunity Commission asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning his claim of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission DISMISSES this petition.
BACKGROUND
At the time of events giving rise to the claims raised in this petition, Petitioner worked as a Police Officer at the Agency's Defense Logistics Agency in San Joaquin, California. Petitioner alleges that he was discriminated against based on his race (African-American) and age (56) when he was removed on January 10, 2014. The Agency removed Petitioner for Off-Duty Misconduct based on his no contest plea in violation of California Vehicle Code 4462(b). The Agency also took into consideration that Petitioner had engaged in "deceitful conduct" when he failed to properly register one of his vehicles in the state of California for over two and a half years.
Petitioner appealed his removal to the MSBP on February 4, 2014. A hearing was conducted on May 7, 2014, and the MSPB Administrative Judge (AJ) issued the initial decision on November 4, 2014. The AJ reversed the Agency's removal based on a finding that it violated Petitioner's right to due process but held that Petitioner had not proven his affirmative defenses of race and age discrimination. The AJ found that none of the coworkers that Petitioner named as comparators were similarly situated to him. Specifically, the AJ determined that the other employees were distinguished from Petitioner in that they held different positions; were charged with crimes that did not contain elements of deceit or; were not convicted of any crimes at all.
On December 10, 2014, the Agency filed a petition for review of the initial decision with the full Board. The full Board found that the Agency had untimely filed its petition without good cause and issued a Final Order on February 25, 2015, dismissing the Agency's petition for review and affirming its initial decision. Petitioner filed the instant petition on March 17, 2015, and included a copy of a civil action, which he filed on January 6, 2015.
ANALYSIS AND FINDINGS
EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. � 1614.303 et seq. We note, however, on January 6, 2015, Petitioner filed a civil action (identified as Civil Action No. 2:15-CV-26) in the United States District Court for the Eastern District of California. After a review of the civil action, we find that the claims raised in the civil action are identical to those raised in the instant petition.
By regulation, a complaint shall be dismissed if it is also the basis of a pending civil action in a United States District Court. See 29 C.F.R. � 1614.107(a)(3). Moreover, we note 29 C.F.R. � 1614.409, which indicates that the filing a civil action . . . shall terminate Commission processing of the appeal. Dismissal is required under these circumstances so as to prevent a Petitioner 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. Dep't of Veterans Affairs, EEOC Request No. 05891079 (May 7, 1990); Sandy v. Dep't of Justice, EEOC Appeal No. 01893513 (Oct. 19, 1989); Kotwitz v. U.S. Postal Service, EEOC Request No. 05880114 (Oct. 25, 1998).
Accordingly, Petitioner's petition for review is hereby DISMISSED.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of 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.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
_1/19/16_________________
Date
1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website.
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