Irving E. Sandy, Jr. Appellant,
V.
Dick Thornburgh, Attorney General, Department of Justice, Agency.
Appeal No.
01893513
October 19, 1989
DISMISSAL OF APPEAL
On January 23, 1989, appellant filed an EEO complaint alleging that he was discriminated against based on his race (White) and age (53) when he was not selected for promotion to the position of Senior Criminal Investigator, GS-1811-12 on September 8, 1988. The agency accepted appellant's complaint for investigation. On May 10, 1989, appellant filed a Civil Action, No. 89-1283, in the United States District Court for the District of Columbia alleging that he was not selected for promotion for the position of Senior Criminal Investigator, GS-1811-12 on September 8, 1988 based on his age.
On July 21, 1989, the agency dismissed appellant's complaint stating that the issues raised in the civil action were the same as those stated in appellant's EEO complaint. The agency stated that in order to avoid duplication of judicial and administrative resources and in consideration that the District Court for the District of Columbia is exercising jurisdiction over appellant's case, his EEO complaint was dismissed pursuant to EEOC Regulation 29 C.F.R. 1613.283.
On August 4, 1989, appellant filed this appeal to the Equal Employment Opportunity Commission claiming that appellant's civil action pertains to discrimination based on his age under the Age Discrimination in Employment Act of 1967, as amended, and his EEO complaint pertains to the discrimination based on his race under Title VII of the Civil Rights Act of 1964, as amended. Therefore, appellant claimed that the civil action and the EEO complaint are separate and distinct and are subsequently processed under two separate federal statutes. Accordingly, appellant claims that the agency erred when it dismissed his EEO complaint alleging race discrimination.
EEOC Regulation 29 C.F.R. 1613.215(a)(3) provides that the agency head or designee shall reject or cancel a complaint that is the basis of a pending civil action in a United States District Court in which the complainant is a party. Sections 1613.283 and .513 state that the filing of a civil action by an employee or applicant involving a complaint filed under this subpart terminates processing of that complaint. A review of the record indicates that appellant's allegation in his EEO complaint and the civil action he filed in the U.S. District Court are the same. Appellant's allegation is that the agency did not select him for promotion on September 8, 1988 for the position of Senior Criminal investigator even though the bases alleged in the EEO complaint and the civil action are different.
EEOC Regulation 29 C.F.R. 1613.215(a)(3) mandates the agency to cancel the complaint under such circumstances for the reason that the decision of a U.S. District court of competent jurisdiction operates as res judicata on the matter and the agency's continued processing of the complaint would be duplicative and result only in a waste of time and its resources. Furthermore, EEOC Regulation 29 C.F.R. 1613.283 and .513 terminate the further processing of an EEO complaint under the above circumstances. Accordingly, the Equal Employment Opportunity Commission AFFIRMS the agency's decision to dismiss appellant's complaint. See 29 C.F.R. 1613.215(a)(3), .283, .513.
STATEMENT OF RIGHTS - ON APPEAL
RIGHT TO REQUEST REOPENING
This decision is final unless a timely request to reopen is filed.
The Commissioners may, in their discretion, reopen and reconsider the decision in this case if you or the agency submits a written request and argument which tend to establish that:
1. New and material evidence is available that was not readily available when the previous decision was issued; or
2. The previous decision involves an erroneous interpretation of law or regulation or misapplication of established policy; or
3. The previous decision is of a precedential nature involving a new or unreviewed policy consideration that may have effects beyond the actual case at hand or is otherwise of such an exceptional nature as to merit the personal attention of the Commissioners.
Requests and supporting arguments MUST be submitted to the Commission and the opposing party within the 30-day time frame for filing a request to reopen. A cross request to reopen, or any argument in opposition to the request to reopen, MUST be submitted to the Commission and the opposing party within 20 days of receipt of the request to reopen. See, 29 C.F.R. 1613.235. All requests and arguments must bear proof of postmark and be submitted to the Director, Office of Review and Appeals, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the absence of a postmark, the request to reopen shall be deemed filed on the date it is received by the Commission.
FOR THE COMMISSION:
Dolores L. Rozzi
Director
Office of Federal Operations
Comments