01995761
07-21-2000
Orelious Washington, Complainant, v. Agency.
Orelious Washington v. United States Postal Service
01995761
07-21-00
.
Orelious Washington,
Complainant,
v.
Agency.
Appeal No. 01995761
Agency No. 1G781001399
DECISION
INTRODUCTION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 24, 1999, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. Section 2000e et seq. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. Section 621 et seq.<1> The Commission accepts the appeal in
accordance with 64 Fed. Reg. 37, 644, 37, 659 (1999)(to be codified at
29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed complainant's
complaint for stating the same claim that was already decided by the
agency and Commission and for filing a civil action regarding the same
allegation that was raised in his complaint.
BACKGROUND
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 24, 1999, dismissing his complaint of unlawful
employment discrimination in violation of Title VII and the ADEA. In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of race (black), color (black), national origin (African
American), sex (male), age (58), and reprisal (prior EEO activity) when:
on November 23, 1998, complainant noticed that the Electronic Technician
PS-09, Promotion Eligibility Register, had been changed and that he was
no longer eligible for promotion into an ET-9 position.
The agency dismissed complainant's claim pursuant to EEOC Regulations
29 C.F.R. � 1614.107(a) (1) and (3), for stating the same claim as one
already decided by the agency and for filing a civil action regarding
the same allegation.
FINDINGS AND ANALYSIS
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to be
codified and hereinafter cited as 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. The purpose of this
provision is to avoid duplicative investigation of identical complaints
by two different fact-finding bodies.
In this case, the record reveals that complainant filed a civil action
with the United States District Court of the Western District of Texas,
San Antonio Division, alleging the same discriminatory action. The judge
in that case granted the agency's Motion for Summary Judgment, (SA-97-
CA-0038), and found no discrimination. Thus, we find that the agency
properly dismissed complainant's claim under 29 C.F.R. � 1614.107(a)(3).
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to be
codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(1)) further
provides that the agency shall dismiss a complaint that states the
same claim that is pending before or has been decided by the agency or
Commission.
The record in the present case reflects that complainant has filed
three previous complaints for not receiving consideration for promotion
to the ET-9 position, (case nos.: 1-G-781-1019-95, 1-G-781-1025, and
1-G-781-1017-96). Accordingly, we find that the agency properly dismissed
complainant's claim pursuant to 29 C.F.R. � 1614.107(a)(1) for stating
the same claim as one already adjudicated by the agency and Commission.
CONCLUSION
For the reasons set forth herein, the Commission hereby AFFIRMS the
decision of the agency dismissing the present complaint.
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:
07-21-00 ____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On 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.