0120111317
09-13-2012
Peter Graves, Complainant, v. Hillary Rodham Clinton, Secretary, Department of State, Agency.
Peter Graves,
Complainant,
v.
Hillary Rodham Clinton,
Secretary,
Department of State,
Agency.
Appeal No. 0120111317
Hearing No. 570-2010-00301X
Agency No. DOS-F-079-09
DISMISSAL
Complainant filed an appeal with this Commission from the Agency's decision dated December 3, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �791 et seq. For the following reasons, the Commission DISMISSES Complainant's appeal.
Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Middle Eastern), national origin (Iranian), religion (Christian), and disability when: Complainant was not selected for a GS 11/12 Foreign Affairs Officer position advertised under vacancy announcement number DS-2009-0113 on May 4, 2009
At the conclusion of the investigation on his complaint, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On September 30, 2010, the AJ assigned to the case granted the Agency's motion for a decision without a hearing and issued a decision finding Complainant failed to prove that he was subjected to discrimination as alleged. On December 3, 2010, the Agency issued a final order fully implementing the AJ's decision. Thereafter, Complainant field the present appeal with the Commission.
The record reveals that Complainant filed Civil Action No. 2:10-cv-01356 MCE KJN PS in the United States District Court for the Eastern District of California on November 22, 2010. In that civil action, Complainant alleged, inter alia, that he was subjected to discrimination based on his ethnic background, religion, national origin, and disability when he was not-selected as a Foreign Affairs Officer in May 2009. On October 2011, a magistrate judge entered Findings and Recommendations recommending, in part, that the Agency's motion for summary judgment of the non-selection claim be granted. Thereafter, Complainant filed an objection to the magistrate judge's Findings and Recommendations. On March 29, 2012, the Court adopted the proposed Findings and Recommendations of the magistrate judge. Thus, the claim raised in Complainant's administrative EEO complaint has been adjudicated by a United States District Court and is DISMISSED pursuant to 29 C.F.R. � 1614.409.
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
9/13/12
__________________
Date
2
01-2011-1317
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111317
4
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