Erick F. Martinez, Complainant,v.Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionNov 15, 2004
07A40122_r (E.E.O.C. Nov. 15, 2004)

07A40122_r

11-15-2004

Erick F. Martinez, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.


Erick F. Martinez v. Social Security Administration

07A40122

November 15, 2004

.

Erick F. Martinez,

Complainant,

v.

Jo Anne B. Barnhart,

Commissioner,

Social Security Administration,

Agency.

Appeal No. 07A40122

Agency No. 01-0037-SSA

Hearing No. 340-2001-03411X

DISMISSAL OF APPEAL

The agency filed an appeal to the Commission pursuant to 29 C.F.R. �

1614.110(a), after an EEOC Administrative Judge (AJ) issued an Order

dated May 12, 2004, finding no discrimination in part and finding

discrimination in part. Complainant alleged discrimination on the

bases of sex and disability when: (1) on August 14, 2000, he was not

selected for the Contact Representative position for the Boyle Height

District Office; and (2) in September 2000, he was not selected for the

Contact Representative position in the Wilshire Center District Office.

On July 30, 2004, complainant filed a civil action (identified as Civil

Action No. 04-06356CAS(MCx)) in the United States District Court for the

Central District of California Western District. The record further

discloses that the claims raised therein are the same as those raised

in the instant 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).

Accordingly, the appeal is DISMISSED pursuant to 29 C.F.R. � 1614.409.

Because of the filing of the civil action, the agency may terminate

processing the matter and is not required to implement the AJ's ordered

relief.

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

November 15, 2004

__________________

Date