01A03925_r
07-13-2001
Richard Arizpe, et al. v. Department of Transportation
01A03925
July 13, 2001
.
Richard Arizpe, et al.
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A03925
Agency No. 2-98-2107
DECISION
Complainant filed a timely appeal with this Commission from an agency's
final order dated March 23, 2000, dismissing a class 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.
Complainant filed a class complaint on June 26, 1998, alleging that a 1995
reorganization of the agency's Airway's Facilities System in the Southwest
region resulted in discriminatory assignments of employees on the bases of
their race/national origin (Hispanic and American Indian) and age (over
40). The agency forwarded the class complaint to an EEOC Administrative
Judge (AJ) who dismissed the class complaint and complainant's individual
complaint on March 2, 2000 pursuant to 29 C.F.R. � 1614.107(a)(1) and
� 1614.107(a)(3). The agency adopted the AJ's decision to dismiss the
class complaint and complainant's individual complaint. Complainant,
acting as a class agent and an individual, filed the present appeal.
The regulation set forth at 29 C.F.R. � 1614.107(a)(3) allows for the
dismissal of a complaint that was the basis of a civil action decided
by a United States District Court in which the complainant was a party.
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 Shapiro v. Department of the Army,
EEOC Request No. 05950740 (October 10, 1996); Stromgren v. Department
of Veterans Affairs, EEOC Request No. 05891079 (May 7, 1990); Kotwitz
v. United States Postal Service, EEOC Request No. 05880114 (October
25, 1988).
The record indicates that on July 9, 1998, complainant filed a civil
action (98-CA-0610OG) in the United States District Court, Western
District of Texas, concerning the same claims raised in the class and
individual EEO complaint.
Accordingly, the agency's decision to dismiss the class complaint and
complainant's individual complaint was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
July 13, 2001
__________________
Date