01986297
03-30-1999
Ulysses Turnage, Jr., Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Ulysses Turnage, Jr. v. United States Postal Service
01986297
March 30, 1999
Ulysses Turnage, Jr., )
Appellant, )
)
v. ) Appeal No. 01986297
) Agency No. 4B-140-0066-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DISMISSAL OF APPEAL
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The final decision was issued on July 27, 1998.
The appeal was postmarked August 13, 1998.
The record reflects that on June 16, 1998, appellant filed a formal
complaint, alleging that he was the victim of unlawful employment
discrimination on the basis of reprisal.
On July 27, 1998, the agency issued a final decision. Therein, the
agency determined that appellant's formal complaint was comprised of
the allegation that in January 1998, appellant's name was removed from
further consideration for the position of Part-Time Flexible City Carrier
in Buffalo, New York, and for all registers under the Western New York
administrative area. The agency dismissed appellant's complaint for
failure to initiate timely contact with an EEO Counselor. Thereafter,
appellant filed an appeal with the Commission, on August 13, 1998.
By letter dated October 2, 1998, the agency notified the Commission that
appellant filed a civil action in U.S. District Court. With its letter,
the agency enclosed a copy of a civil compliant filed by appellant on
August 13, 1998, in the U.S. District Court for the Western District of
New York (civil case no. 98 CV 0509S(F)). Appellant's civil complaint
addressed the same matters that are the subject of his EEO complaint,
discussed above.
EEOC Regulation 29 C.F.R. �1614.410 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 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). EEOC Regulation 29 C.F.R. �1614.408
provides that a complainant may file a civil action in U.S. District
Court after 180 days from the date of filing an appeal with the
Commission if there has been no final decision by the Commission.
The Commission notes that while appellant's civil action was filed
prior to the expiration of the 180-day filing period, appellant's appeal
should be dismissed in view of the Commission's long-standing practice
of conserving resources and avoiding the potential for inconsistent or
conflicting decisions. See Posey v. Department of the Navy, EEOC Appeal
No. 01951777 (September 21, 1995). If the court dismisses appellant's
civil action for premature filing, he may request that the Commission
reinstate his appeal for further processing. Accordingly, appellant's
appeal is hereby DISMISSED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
March 30, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations