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