Albert A. Esposito, Appellant,v.William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.

Equal Employment Opportunity CommissionNov 8, 1999
01991490 (E.E.O.C. Nov. 8, 1999)

01991490

11-08-1999

Albert A. Esposito, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.


Albert A. Esposito v. Department of Defense

01991490

November 8, 1999

Albert A. Esposito, )

Appellant, )

)

v. ) Appeal No. 01991490

) Agency No. XQ-98-021

William S. Cohen, )

Secretary, )

Department of Defense, )

(Defense Logistics Agency), )

Agency. )

______________________________)

DECISION

On December 7, 1998, the appellant filed a timely appeal with this

Commission from a final agency decision (FAD) received by him on

November 27, 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. and the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. In his

complaint, the appellant alleged that he was subjected to discrimination

on the bases of sex (male), age (February 2, 1957) and reprisal when:

On February 6, 1998 he was not referred for a GS-1101-14, Customer

Liaison Representative position, job announcement number (JOA)

HO-421-97.

The agency dismissed the appellant's complaint pursuant to EEOC Regulation

29 C.F.R. � 1614.107(d), because the appellant filed a grievance on this

matter as outlined in DLA Regulation 1428.3, Administrative Grievance

System, and as such elected to pursue a non-EEO process.

EEOC Regulation 29 C.F.R. � 1614.301(a) states that when a person is

employed by an agency subject to 5 U.S.C. � 7121(d) and is covered

by a collective bargaining agreement that permits allegations of

discrimination to be raised in a negotiated grievance procedure, a

person wishing to file a complaint or grievance on a matter of alleged

employment discrimination must elect to raise the matter under either part

1614 or the negotiated grievance procedure, but not both. An aggrieved

employee who files a grievance with an agency whose negotiated agreement

permits the acceptance of grievances which allege discrimination may

not thereafter file a complaint on the same matter under 29 C.F.R. �

1614 irrespective of whether the agency has informed the individual

of the need to elect or whether the grievance has raised an issue

of discrimination. EEOC Regulation 29 C.F.R. � 1614.107(d) provides,

in pertinent part, that an agency shall dismiss a complaint where the

complainant has raised the matter in a negotiated grievance procedure

that permits allegations of discrimination.

In the instant case the appellant admits he filed a grievance in

accordance with DLA Regulation 1428.3 and asserts that the agency has

failed to follow its own procedures. A review of the record shows

that the grievance dated March 2, 1998, was through an administrative

grievance process, set forth at DLA regulation 1428.3; however, there

is no evidence that the appellant raised the matter presented in this

claim in a negotiated grievance procedure permitting allegations of

discrimination.<1>

Accordingly, we VACATE the agency's dismissal of the appellant's complaint

and REMAND for further processing in accordance with the applicable

regulations.

ORDER (E1092)

The agency is ORDERED to process the complaint in accordance with 29

C.F.R. � 1614.108. The agency shall acknowledge to the appellant that

it has received the remanded allegations within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue to

appellant a copy of the investigative file and also shall notify appellant

of the appropriate rights within one hundred fifty (150) calendar days

of the date this decision becomes final, unless the matter is otherwise

resolved prior to that time. If the appellant requests a final decision

without a hearing, the agency shall issue a final decision within sixty

(60) days of receipt of appellant's request.

A copy of the agency's letter of acknowledgment to appellant and a copy

of the notice that transmits the investigative file and notice of rights

must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30) calendar

days of the completion of all ordered corrective action. The report shall

be submitted to the Compliance Officer, Office of Federal Operations,

Equal Employment Opportunity Commission, P.O. Box 19848, Washington,

D.C. 20036. The agency's report must contain supporting documentation,

and the agency must send a copy of all submissions to the appellant.

If the agency does not comply with the Commission's order, the appellant

may petition the Commission for enforcement of the order. 29 C.F.R. �

1614.503(a). The appellant also has the right to file a civil action

to enforce compliance with the Commission's order prior to or following

an administrative petition for enforcement. See 29 C.F.R. �� 1614.408,

1614.409, and 1614.503(g). Alternatively, the appellant has the right to

file a civil action on the underlying complaint in accordance with the

paragraph below entitled "Right to File A Civil Action." 29 C.F.R. ��

1614.408 and 1614.409. A civil action for enforcement or a civil action

on the underlying complaint is subject to the deadline stated in 42

U.S.C. � 2000e-16(c) (Supp. V 1993). If the appellant files a civil

action, the administrative processing of the complaint, including any

petition for enforcement, will be terminated. See 29 C.F.R. � 1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence 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 involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is

received by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (R0993)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court. It is the position of the Commission that 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. You should be aware, however, that courts in some

jurisdictions have interpreted the Civil Rights Act of 1991 in a manner

suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive this decision. To ensure that your

civil action is considered timely, you are advised to file it WITHIN

THIRTY (30) CALENDAR DAYS from the date that you receive this decision

or to consult an attorney concerning the applicable time period in the

jurisdiction in which your action would be filed. In the alternative,

you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR

DAYS of the date you filed your complaint with the agency, or filed your

appeal with the Commission. 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.

Filing a civil action will terminate the administrative processing of

your complaint.

RIGHT TO REQUEST COUNSEL (Z1092)

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:

November 8, 1999

____________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

1 In fact, the agency's regulation states that allegations of

discrimination are not grievable.