05a00964
11-22-2000
Elmon M. Elmore, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Elmon M. Elmore v. Department of the Interior
05A000964
November 22, 2000
.
Elmon M. Elmore,
Complainant,
v.
Bruce Babbitt,
Secretary,
Department of the Interior,
Agency.
Request No. 05A00964
Appeal No. 01972684
Agency Nos. FNP-90-009, FNP-90-057R
DENIAL OF REQUEST FOR RECONSIDERATION
Complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Elmon
M. Elmore v. Department of the Interior, EEOC Appeal No. 01972684
(December 11, 1998).<1> EEOC Regulations provide that the Commission may,
in its discretion, reconsider any previous Commission decision where the
requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
On October 10, 1989, complainant filed a formal complaint alleging
discrimination on the bases of race (Black), color (black), national
origin (non-Hispanic), reprisal (prior EEO activity), and age (DOB:
10/5/28), when he was not selected for the position of Equal Employment
Opportunity Manager, GM-260-13, Southwest Region, on June 10, 1988.
Following an investigation, complainant requested a hearing before an
EEOC Administrative Judge (AJ). The AJ thereafter issued Findings and
Conclusions Without a Hearing finding that complainant was discriminated
against on the basis of national origin only. The agency then issued
a final decision adopting the AJ's findings, but modified the relief
ordered.
On February 10, 1997, complainant filed an appeal with the Commission
arguing that the agency failed to properly implement its final decision.
See Elmore v. Department of Interior, EEOC Appeal No. 01972684. In our
prior decision, we found that complainant failed to present sufficient
documentation to show that the agency failed to properly implement its
FAD. We also noted that complainant's arguments essentially revolved
around events subsequent to the agency's issuance of its FAD, and alluded
to a potential retaliation complaint against the agency.
On January 15, 1999, complainant filed the instant request for
reconsideration. By letter dated August 3, 2000, the agency advised
the Commission that complainant has since deceased and complainant's
wife is proceeding with his case. Further, the agency notified the
Commission that on November 9, 1999, complainant had filed a civil action
(identified as Civil Action No. C99-4895) in the United States District
Court for the Northern District of California.
A review of the agency's August 3, 2000 letter and attachments discloses
that on October 2, 1997, complainant filed a second complaint with the
agency regarding, among other things, the agency's failure to properly
implement its FAD. The allegations contained in the civil action are the
same as those contained in the prior decision, as well as his October 2,
1997 complaint.
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."
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).
After a careful review of the record, we find that the civil action
addresses the subject of the prior 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. Complainant's request for reconsideration is DISMISSED.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
November 22, 2000
__________________
Date
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.