0120102665
09-21-2010
Joe Wilson, Jr, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, Agency.
Joe Wilson, Jr,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120102665
Hearing No. 570-2008-00748X
Agency No. 2008-21855-FHWA-02
DECISION
Complainant filed an appeal with this Commission from the Agency's final order dated April 7, 2010, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final order.
BACKGROUND
Complainant filed a complaint dated January 29, 2010, alleging that the Agency subjected him to discrimination on the bases of race and age when: Complainant was not selected for a career ladder promotion to the GS-13 grade level on December 3, 2007.
At the conclusion of the investigation, complainant received a copy of the investigative report and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion to Dismiss.
In its motion, the Agency requested that the AJ dismiss Complainant's complaint because he filed a civil action in the United States District Court for the District of Columbia concerning the same issues as those raised in the instant formal complaint.
On April 6, 2010, the AJ granted the Agency's motion, dismissing Complainant's complaint pursuant to 29 C.F.R. � 1614.109(b) and 29 C.F.R. � 1614.107(a)(3). The AJ found that Complainant filed a civil action concerning the same issues as those raised in the instant complaint.
On appeal, Complainant contends that he did not receive a final order from the Agency. Complainant requests the Commission order the Agency to issue a final order.
ANALYSIS AND FINDINGS
The record reflects that on June 3, 2010, Complainant filed an appeal with the Commission directly from the AJ's April 6, 2010 decision. Complainant claimed that he had not received a final order from the Agency concerning his complaint. The record reflects that the Agency issued a final order dated April 7, 2010. The final order was sent via certified mail to Complainant's address of record; however, it was unclaimed and returned to Washington, D.C. on May 6, 2010. Track and Confirm Receipt. The Agency stated that upon return of a certified letter, the standard practice is to resend the final order via first class mail. The Commission notes that where an Agency fails to issue a final action within 40 days of the AJ's decision, the AJ's decision became the final action pursuant to 29 C.F.R. � 1641.109(i). We find the present appeal is properly before the Commission.
The record reflects that on March 24, 2010, Complainant filed a civil action (identified as Civil Action No. 1:10-cv-00490) in the United States District Court for the District of Columbia. 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. � 1614.107(a)(3) provides that a formal complaint shall be dismissed if it is also the basis of a pending civil action in a United States District Court. Commission regulations mandate dismissal of the EEO complaint under those 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. Dep.t of Veterans Affairs, EEOC Request No. 05891079 (May 7, 1990); Sandy v. Dep't of Justice, EEOC Appeal No. 01893513 (October 19, 1989); Kotwitz v. USPS, EEOC Request No. 05880114 (October 25, 1998).
CONCLUSION
Accordingly, the Agency's final order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
September 21, 2010
__________________
Date
2
0120102665
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102665