0120112708
01-31-2012
Vernon A. Guion, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Vernon A. Guion,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120112708
Hearing No. 430-2009-00368X
Agency No. 09-65923-00508
DISMISSAL OF APPEAL
Complainant filed an appeal with this Commission from the March 7,
2011 final Agency action implementing the EEOC Administrative Judge’s
(AJ) 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.
At the time of events giving rise to this complaint, Complainant
worked as a Sheet Metal Mechanic at the Component Manufacture, Weld,
and Repair Shop at the Agency’s Fleet Readiness Center East in Cherry
Point, North Carolina. On January 16, 2009, Complainant filed a formal
complaint alleging that the Agency subjected him to discrimination on
the bases of race (Black) and reprisal for prior protected EEO activity
under Title VII of the Civil Rights Act of 1964 when: 1) his supervisor
(Supervisor) denied Complainant overtime and 2) the Supervisor provided
inaccurate information on an Overtime Assignment Sheet.
On October 28, 2011, Complainant filed a civil action (identified as
Civil Action No. 4:11-CV-159-F3) in the United States District Court for
the Eastern District of North Carolina. The record further discloses
that the claims raised therein are the same as those raised in the
instant complaint. 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. Dep’t of Veterans Affairs, EEOC Request No. 05891079 (May 7, 1990);
Sandy v. Dep’t of Justice, EEOC Appeal No. 01893513 (October 19,
1989); Kotwitz v. U.S. Postal Serv., 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 (M0610)
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), at 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 (S0610)
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 (Z0610)
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
January 31, 2012
__________________
Date
2
0120112708
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112708