Lerdon Woodfolk v. Department of Defense 01991195 January 19, 2000 Lerdon Woodfolk, ) Complainant, ) ) Appeal No. 01991195 v. ) Agency No. DFAS-CO-98-000H-016 ) William S. Cohen, ) Secretary, ) Department of Defense, ) (Defense Finance & Accounting Service), ) Agency. ) __________________________________________) DECISION On November 24, 1998, complainant filed an appeal with this Commission from a final agency decision (FAD) received by him on October 31, 1998, pertaining 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.<1> In his complaint, complainant alleged that he was subjected to discrimination on the bases of race (African American), color (African American), sex (male) and reprisal (prior EEO activity) when: (1) the agency caused inconsistent rating/ranking practices as a result of non-standard crediting plans, which led to complainant not being referred for interview to a GS-13 position. Complainant also alleges that discrimination with respect to promotions has been ongoing since 1989. The agency dismissed complainant's complaint pursuant to Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified as 29 C.F.R. § 1614.107(a)(3)), on the grounds that the instant complaint is the basis of a pending civil action in a United States District Court. The record indicates that on September 2, 1998, a class action, of which complainant was a member, was filed (identified as Civil Action No. C2-98-799) in the United States District Court for the Southern District of Ohio, Eastern Division. On appeal, complainant maintains that the instant complaint raised matters not addressed in his civil suit. Upon review, we find that the issues raised in complainant's civil action are sufficiently broad and far-reaching to encompass those claims of unlawful employment discrimination raised by complainant in his May 5, 1998 EEO complaint. Accordingly, the agency's decision dismissing complainant's complaint is AFFIRMED for the reasons set forth herein. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M1199) 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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. § 1614.405). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter referred to as 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 (S1199) 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 (Z1199) 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 that the Court appoint an attorney to represent you and that the Court 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 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: January 19, 2000 ____________________________ Date Carlton M. Hadden, Acting Director Office of Federal Operations CERTIFICATE OF MAILING For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days of mailing. I certify that the decision was mailed to complainant, complainant's representative (if applicable), and the agency on: _______________ _____________________________ Date Equal Employment Assistant 1On November 9, 1999, revised regulations governing the EEOC's federal sector complaint process went into effect. These regulations apply to all federal sector EEO complaints pending at any stage in the administrative process. Consequently, the Commission will apply the revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the present appeal. The regulations, as amended, may also be found at the Commission's website at WWW.EEOC.GOV.