01a53590
07-13-2005
Edgar Perez, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Edgar Perez v. Department of Homeland Security
01A53590
July 13, 2005
.
Edgar Perez,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A53590
Agency No. HS-05-0180
DISMISSAL OF APPEAL
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 25, 2005, 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. In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of race (Hispanic), national origin (Puerto Rican), and
reprisal for unspecified prior EEO activity when:
He learned in November 2003 that he was not selected for the position
of Supervisory Customs Inspector.<0>
He was notified by letter of July 2, 2004 that he would be suspended
for ten (10) days without pay for inappropriate conduct and misuse of
government property.
On August 27, 2004, complainant filed a civil action in the United
States District Court for the District of Arizona against the
agency and several agency employees in their official capacities.
The record discloses that complainant's civil suit addresses the same
allegedly discriminatory employment actions as the instant complaint,
see Plaintiff's Complaint at �� 26, 27, 29 and 34, Perez v. Department
of Homeland Security (D. Ariz. filed Aug. 27, 2004) (No. 04-CV-1791)
(alleging that the defendants' imposition of the suspension and continual
failure to promote complainant to positions for which he applied were
in violation of the Fourth, Fifth, Sixth, and Fourteenth Amendments and
a variety of federal statutes). The regulation found at 29 C.F.R. �
1614.409 provides that the filing of a civil action �shall terminate
Commission processing of the appeal.�<0> 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). Accordingly, complainant's appeal is hereby DISMISSED.
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
July 13, 2005
__________________
Date
0 1Although the Final Agency Decision (FAD)
finds this claim to be raised in the formal complaint, we note that the
record is unclear as to whether complainant ever intended to claim the
non-selection separately or whether it was merely provided as factual
background related to the suspension claim. However, the Commission
assumes arguendo that a separate claim concerning the non-selection is
inherent in the formal complaint.
0 2On appeal, complainant, an Major in the United States Army Reserve,
argues that the continuance provisions for active service members set
out in the Soldiers' and Sailors' Civil Relief Act of 1940, as amended,
50 App. U.S.C.A. � 500 et seq., �inhibit� the Commission's application
of forum election rules under 29 C.F.R. � 1614. However, the Commission
finds that a stay is improper in the instant case. Firstly, we note
that complainant has failed to provide the proper documentation of
his active military service pursuant to the requirements set out in 50
App. U.S.C.A. � 522(b)(2). Moreover, a mere showing that a complainant
is in the military service does not render a stay mandatory, unless,
in the discretionary opinion of the court, a complainant's inability
to prosecute an action or conduct a defense is materially affected
by his military service. See 50 App. U.S.C.A. � 522(b)(2); Boone
v. Lightner, 319 U.S. 561, 568 (1943). Given that complainant has been
able to actively pursue three separate actions in three separate forums
from July 2004 to the present, and absent any proof to the contrary,
we find that complainant was not prejudiced by his military service when
electing a forum such that he would qualify for a stay under the Soldiers'
and Sailors' Relief Act of 1940.