0120093820
03-08-2011
Milford A. Baldwin, Jr., Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Transportation Security Administration), Agency.
Milford A. Baldwin, Jr.,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Transportation Security Administration),
Agency.
Appeal No. 0120093820
Agency No. HS 09-TSA-006188
DISMISSAL OF APPEAL
On September 22, 2009, Complainant filed a timely appeal with this
Commission from the August 24, 2009 final Agency decision finding no
discrimination with regard to his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. � 2000e et seq., the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. and
Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Transportation Security Officer at the Agency's Detroit Metro Wayne
County Airport facility in Romulus, MI. He filed a formal complaint
alleging that the Agency subjected him to discrimination on the bases of
race (unidentified) disability, age (57), and reprisal for prior protected
EEO activity when he was terminated effective November 11, 2008.
The Agency dismissed the complaint for failure to timely initiate EEO
counseling. 29 C.F.R. � 1614.105(d) & .107(a)(2). Complainant
then filed a civil action in the Third Judicial District of the
State of Michigan alleging violations of Title VII, the ADEA, and the
Rehabilitation Act when he was terminated. On March 18, 2010, the civil
action was moved to the United States District Court for the Eastern
District of Michigan, and assigned case number 5:10-cv-11096.
In an Opinion and Order dated July 9, 2010, the District Court ruled that
the Agency properly dismissed the administrative complaint for failure
to timely initiate EEO counseling. Pursuant to the Opinion and Order,
the Court dismissed the case on July 9, 2010.
ANALYSIS AND FINDINGS
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. 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). We add that the United
States District Court already ruled that the Agency properly dismissed
Complainant's administrative complaint for failure to timely initiate
EEO counseling.
Accordingly, Complainant's appeal is hereby dismissed. See 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
March 8, 2011
__________________
Date
2
0120093820
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120093820