James Bankston, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionFeb 18, 2000
01994953 (E.E.O.C. Feb. 18, 2000)

01994953

02-18-2000

James Bankston, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


James Bankston, )

Complainant, )

)

v. ) Appeal No. 01994953

Louis Caldera, ) Agency No. 09904J0070

Secretary, )

Department of the Army, )

Agency. )

____________________________________)

DECISION

On June 2, 1999, complainant filed a timely appeal with this Commission

from a final agency decision (FAD) received by him on May 4, 1999,

pertaining to 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. and the Age Discrimination in Employment Act of

1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. <1> In his complaint,

complainant alleged that he was subjected to discrimination on the bases

of race (African American) and age (68) when:

On January 11, 1999, complainant was rated as unsuccessful for the period

November 1, 1997 through January 4, 1999.

The agency dismissed complainant's complaint on the grounds that

complainant raised the same matter in an appeal to the Merit Systems

Protection Board (MSPB). Specifically, the agency claimed that

complainant included a charge of discrimination in his MSPB appeal

on his removal from federal sector service based on performance.

The agency stated that the performance appraisal that forms the bases

for complainant's present EEO complaint is an integral part of the

basis for removal action appealed to the MSPB. Therefore, the agency

concluded that since complainant elected to proceed in the MSPB, he

was excluded from pursuing the same matter through the EEO process.

The present appeal followed.

In response to complainant's appeal, the agency states that complainant

filed a civil action on August 25, 1999. The agency notes that in

the civil action, complainant alleged employment discrimination on the

basis of age regarding his termination from the agency for failure to

maintain an adequate performance level. Therefore, the agency contends

that complainant's present EEO complaint involved the same matters raised

in the civil action.

The record reveals that complainant filed a civil action in the United

States District Court for the District of Nevada, (CV-N-99-00524-HDM) on

August 25, 1999. In the civil action at issue, complainant alleged that

his termination on February 25, 1999, for failure to meet and maintain an

overall satisfactory level of performance was a pretext for discrimination

on the basis of age and in retaliation for prior protected activity.

Volume 64 Fed. Reg. 37, 644, 37, 659 (1999)(to be codified and hereinafter

referred to as 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. 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). The record indicates that

complainant's civil action involved a claim of employment discrimination

based on age and in retaliation for prior protected activity, involving

complainant's termination from the agency for failure to maintain

satisfactory performance levels. The Commission finds that complaint's

current appeal before the EEOC concerning his January 11, 1999 performance

appraisal is related to and/or inextricably intertwined with the matters

raised in his civil action since complainant's termination was purportedly

based, in part, on this appraisal.

Volume 64 Fed. Reg. 37, 644, 37, 659 (1999)(to be codified and hereinafter

referred to as 29 C.F.R. � 1614.407) 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 complainant's civil

action was filed prior to the expiration of the 180-day period, this

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 complainant's civil action for premature filing, he may

request that the Commission reinstate his appeal for further processing.

Accordingly, this appeal is hereby DISMISSED. 29 C.F.R. �1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

February 18, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant1On 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.