Martin F. Salazar, Complainant,v.Spencer Abraham, Secretary, Department of Energy, Agency.

Equal Employment Opportunity CommissionApr 27, 2004
01a40507_r (E.E.O.C. Apr. 27, 2004)

01a40507_r

04-27-2004

Martin F. Salazar, Complainant, v. Spencer Abraham, Secretary, Department of Energy, Agency.


Martin F. Salazar v. Department of Energy

01A40507

April 27, 2004

.

Martin F. Salazar,

Complainant,

v.

Spencer Abraham,

Secretary,

Department of Energy,

Agency.

Appeal No. 01A40507

Agency No. 02(20)SR

Hearing No. 140-A2-8271X-TRJ

DECISION

Complainant filed a timely appeal with this Commission from the final

agency decision dated October 3, 2003, 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.

In his formal EEO complaint dated November 5, 2001, complainant alleged

that he was subjected to discrimination on the bases of national origin,

age, and in reprisal for prior EEO activity.

The instant complaint was accepted for investigation and the claim that

was the subject of investigation was identified by the agency in the

following fashion:

You were forced to work in a hostile work environment (prior to

termination); management failed to take action; and reinstatement

conditions are retaliatory.

On September 11, 2003, an Administrative Judge (AJ) issued an Order

of Dismissal. Therein, the AJ stated that the hearing request in the

instant complaint was dismissed and that the complaint was remanded to the

agency for further processing. The AJ determined that complainant was

�forum shopping� and that the matters raised in the instant complaint

were inextricably intertwined with similar claims raised in a civil

action filed by complainant in Federal District Court.

Thereafter, on October 3, 2003, the agency issued the final decision that

is the subject of the instant appeal. The agency dismissed complainant's

complaint pursuant to 29 C.F.R. 1614.107(a)(3) on the grounds that the

matter raised therein was also raised in a civil action.

The record reflects that on April 5, 2001, complainant filed a civil

action in United States District Court for the Southern District of

Georgia, Augusta Division. This civil action was subsequently transferred

to the United District Court for the District of South Carolina, on July

5, 2003. On July 5, 2003, complainant filed an amended civil action

(identified as Civil Action No. CA 1:01-3209-22-BDC) in the United States

District Court for the District of South Carolina.

The Commission determines that the agency properly found that

complainant's civil action identified above raised the same matters that

were raised in the instant EEO complaint.

Accordingly, the agency's decision to dismiss the instant complaint was

proper and is AFFIRMED. See 29 C.F.R. � 1614.107(a)(3).

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. � 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. � 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 (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. � 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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

April 27, 2004

__________________

Date