01a54221
09-21-2005
Thomas Martinez, III, Complainant, v. Stephen L. Johnson, Administrator, Environmental Protection Agency, Agency.
Thomas Martinez, III v. Environmental Protection Agency
01A54221
September 21, 2005
.
Thomas Martinez, III,
Complainant,
v.
Stephen L. Johnson,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 01A54221
Agency No. 2005-0032-HQ
DISMISSAL OF APPEAL
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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. Sec. 2000e et seq. ,
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. Sec. 791 et seq. , and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. Sec. 621 et seq.
In his complaint, filed February 6, 2005, complainant alleged that
he was subjected to discrimination on the bases of national origin
(Hispanic), disability, (allergic rhinitis) age (D.O.B. March 15, 1953),
and reprisal for prior EEO activity when on October 27, 2004 he received
a letter of reprimand.
EEOC Regulation 29 C.F.R. Sec. 1614.107(a)(1) provides in part 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 reflects that on the same day as he filed the instant complaint,
complaint filed another complaint (Agency No. 2005-0031-HQ) based on the
same course of conduct as the instant complaint, i.e., allegedly false and
defamatory statements by a supervisor which resulted in the issuance of a
letter of reprimand. Complainant's argument on appeal notwithstanding,
the other complaint, if proven, would entitle him to the same relief as
the instant complaint. The instant complaint was therefore superfluous
and properly dismissed for stating the same claim that is pending before
or has been previously decided by the agency or Commission.
Based on the foregoing, the Commission AFFIRMS the agency's final decision
dismissing the instant complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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. Sec. 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. Sec. 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. Sec. 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. Sec. 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. Secs. 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
September 21, 2005
__________________
Date