0120090611
03-19-2009
Esco L. Blaylock, III, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Esco L. Blaylock, III,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120090611
Hearing No. 530-2008-00107X
Agency No. HS 06-TSA-003782
DISMISSAL OF APPEAL
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from the agency's final order dated
October 14, 2008, fully implementing an EEOC Administrative Judge's
(AJ) 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. for filing a civil action on the same
matters. Complainant alleged that he was subjected to discrimination
based on race (Native American), color (dark), sexual orientation,
and reprisal for prior EEO activity when (1) on September 13, 2006,
he was charged with absence without leave (AWOL); (2) on September 19,
2006, he was given a notice of proposed removal, and (3) on November 13,
2006, he was given a decision of removal.
EEOC AJs issued two decisions, the first dismissing part of the complaint,
the second the remainder on the grounds that complainant filed a civil
action covering the same matters. The agency then issued a final order
implementing the AJ's decisions. On appeal, complainant does not
contest that he filed a civil action on claims 2 and 3. He argues he
did not file a civil action on claim 1.
On January 29, 2007, complainant filed a civil action (identified as
Civil Action No. 07cv464) in the United States District Court for the New
Jersey, and subsequently filed several amended complaints.1 A review
of the civil action complaint, as amended, discloses that the claims
raised therein are the same as those raised in the instant complaint.
We agree with the assessment of the AJ that claim 1 is part of the
harassment claim in the civil action. In fact, in a Court filing on
October 30, 2008, which served to oppose an agency motion for summary
judgment and list undisputed facts for trial, complainant specifically
raised the AWOL at paragraphs numbered 46 and 47. He also did so in an
appended document supporting his complaint of civil rights and liberties,
at page seven. 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, complainant's appeal is hereby dismissed. See 29 C.F.R. �
1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
March 19, 2009
__________________
Date
1 The Court's computerized docket reveals that as of March 17, 2009,
the civil action was still pending.
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0120090611
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090611