0120170915
05-12-2017
Luis H.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Luis H.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120170915
Agency No. 1B-021-0017-16
DISMISSAL OF APPEAL
On December 30, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated December 13, 2016, procedurally 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Motor Vehicle Operator at the Agency's Fort Point Post Office in Boston, Massachusetts.
On November 9, 2016, Complainant filed an equal employment opportunity (EEO) complaint. The Agency determined that he alleged therein that he was discriminated against based on his race (African-American), national origin (not specified), and color (Black) when:
1. On December 8, 2015, he was issued a Letter of Warning;
2. On December 18, 2015, he was issued a 7 Day Suspension;
3. During November and December 2015, management and/or his co-workers refused to help unload the truck, pulled the dock plate from under him, made false statements about him, called the police on him and shared his medical information;
4. On April 8, 2016, his driving privileges were temporarily suspended;
5. On April 27, 2016, he was issued a 14 Day Suspension; and
6. On October 27, 2016, his union's request for documentation was not properly acted upon.
The Agency dismissed issues 1 - 5 for failure to timely initiate EEO counseling, and issue 6 for failure to state a claim.
On appeal, Complainant indicates that he filed a civil action in connection with his complaint, and enclosed papers he filed with the Commonwealth of Massachusetts, Suffolk County Superior Civil Court. He filed this civil action on December 27, 2016.
We take administrative notice that pursuant to 28 U.S.C. �� 1442(a), on March 10, 2017, an Assistant U.S. Attorney filed a "Notice of Removal" that the lawsuit was removed (transferred) to the United States District Court. Codified statute 28 U.S.C. �� 1442(a) provides that a civil action that is commenced in a State court against the United States or any agency thereof may be removed by the United States or agency thereof to the appropriate United States District Court. The notice was filed with the Suffolk County Superior Civil Court and the United States District Court for the District of Massachusetts. The Suffolk County Superior Civil Court docket reflects that the case was transferred to the United States District Court on March 21, 2017.
The United States District Court for the District of Massachusetts docketed Complainant's case as Civil Action No. 1:17-cv-10399. In his transferred civil action complaint, Complainant wrote case number 1B-021-0017-16 in the caption, the Agency administrative number in the complaint before us, and raised the same claims identified by the Agency in his administrative EEO complaint. On April 18, 2017, Complainant filed a motion to remand his civil action to the Suffolk Superior County Civil Court. The District Court denied the motion on May 5, 2017. On May 11, 2017, Complainant filed an appeal with the U.S. Court of Appeals. As of May 11, 2017, the civil action appeal is still pending. 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 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. U.S. Postal Serv., EEOC Request No. 05880114 (October 25, 1988).
CONCLUSION
Accordingly, Complainant's administrative appeal is hereby dismissed. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
May 12, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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