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