01992684
12-08-1999
Phillip M. Duse, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Phillip M. Duse, )
Complainant, )
) Appeal No. 01992684
v. ) Agency No. HC-97-004
)
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Logistics Agency), )
Agency. )
)
DISMISSAL OF APPEAL
In this case, complainant, on February 12, 1999, filed an appeal with
this Commission from a final decision of the agency concerning Complaint
No. HC-97-004.<1> The agency's decision found that he had not been
subjected to unlawful employment discrimination because of his race
(Black), color (black), and previous EEO activity. Subsequently, on
September 17, 1999, complainant filed a civil action, Case No. 99-1400-A,
in the United States District Court for the Eastern District of
Virginia. A review of the civil action indicates that it encompasses
the allegations raised in complainant's Complaint No. HC-97-004. In
paragraph 4 of his pleading, complainant stated, among other things, that:
[b]eginning with issues alleged in an initial [sic] two EEO complaints,
filed against the Defense Logistics Agency in 1992/93 and a third
complaint filed against the agency in 1996, (Agency Nos. ZA-93-001,
HC-94-001 and HC-97-004) the plaintiff alleged discrimination in
promotion, performance appraisal, tort activity and retaliation for
previous complaints. The plaintiff duly registered the complaints with
the EEOC and duly appealed [the] agency finding of no discrimination,
through council [sic] and self, appeal #01956449 [1992/93 complaints]
and EEOC Docket No. 01992684, [1996 complaint]. The plaintiff, having
complied with agency in-house procedures and exhausted all remedies,
now seeks relief and compensation, through trial by jury, for the justice
denied by the agency and EEOC adjudication process.
Id. (Emphasis added). In 64 Fed. Reg. 37,644, 37,659 (1999) (to be
codified and hereinafter referred to as 29 C.F.R. � 1614.409), the
regulations provide that filing a civil action under 29 C.F.R. � 1614.407
or � 1614.408 shall terminate all Commission processing of an appeal.
Since complainant, by filing the above referenced civil action, has
elected to proceed in the Federal Court system, all administrative
processing of his complaint is terminated. 29 C.F.R. � 1614.409.
Accordingly, the appeal is DISMISSED.
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:
__12-08-99____________ __________________________________
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:
_________________________
__________________________1On 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.