0120081393
12-22-2011
Yuri J. Stoyanov, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Yuri J. Stoyanov,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120081393
Hearing No. 531-2007-00097X
Agency No. 06-00167-01211
DECISION
Complainant filed an appeal with this Commission from the January
28, 2008 final Agency decision dismissing 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. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a
Scientist, ND-1310-04, at the Naval Surface Warfare Center in Carderock,
Maryland. On April 15, 2006, Complainant filed an EEO complaint alleging
that he was subjected to discrimination on the bases of national origin
(Russian), age (50), and in reprisal for prior protected EEO activity
arising under Title VII and the ADEA when:
1. he was not selected for a temporary program manager position in Code
743, advertised under ND-XXXX-05-4G343158-1 and;
2. he was not selected for a temporary program manager position in Code
7207, advertised under ND-XXXX-05-4G302896-1.
The Agency partially dismissed seven other claims in Complainant’s
complaint under various parts of 29 C.F.R. § 1614.107(a). At the
conclusion of the investigation, Complainant was provided with a copy
of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested
a hearing. In a decision issued on December 17, 2007, the AJ dismissed
the complaint because Complainant filed a civil action which encompassed
claims of non-promotion or non-selection in 2006, among other allegations.
The Agency issued its final decision fully implementing the AJ’s
decision.
ANALYSIS AND FINDINGS
Upon review, the Commission finds that on July 25, 2007, Complainant
filed a civil action (identified as Civil Action No. RDB 07 CV-1985)
(“Civil Action”) in the United States District Court for the District
of Maryland. The record discloses that the claims raised therein are
so broad as to include the claims in this complaint. The complaint
alleges, in addition to a long series of discrete discriminatory events,
that he was subjected to a “continuous pattern of discrimination”
by a supervisor (Civil Action complaint ¶ 166) “in conspiracy with
subordinates” (Id ¶ 52), regarding failure to promote (Id ¶ 55).
The regulation found at 29 C.F.R. § 1614.107(a)(3) provides that a
formal complaint shall be dismissed if it is also the basis of a pending
civil action in a United States District Court. 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
(Oct. 19, 1989); Kotwitz v. U.S. Postal Serv., EEOC Request No. 05880114
(Oct. 25, 1988).
We have previously dismissed appeals by Complainant after finding
that his civil court filings were so broad as to include any EEO claims
pending in the administrative process at the time of his filing. See Yuri
Stoyanov v. Dep’t of the Navy, EEOC Appeal Nos. 0120061303, 0120062900,
0120063442, 0120064410 (April 26, 2007).
CONCLUSION
Accordingly, the AJ's dismissal of the complaint and the Agency’s
implementation of the AJ’s decision is AFFIRMED.
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
December 22, 2011
Date
2
0120081393
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120081393