Arnulfo Indrogo, Complainant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionNov 9, 1999
01994806 (E.E.O.C. Nov. 9, 1999)

01994806

11-09-1999

Arnulfo Indrogo, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.


Arnulfo Indrogo, )

Complainant, )

)

v. ) Appeal No. 01994806

) Agency No. 99-2055

Lawrence H. Summers, )

Secretary, )

Department of the Treasury, )

Agency. )

____________________________________)

DECISION

Complainant filed a timely appeal with this Commission from a final

agency decision (FAD) dismissing his complaint of unlawful employment

discrimination brought under Section 501 of the Rehabilitation Act of

1973, as amended, 29 U.S.C. � 791 et seq.<1> We accept the appeal

pursuant to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29

C.F.R. � 1614.405).

After unsuccessful EEO counseling, complainant filed a formal complaint

claiming that the agency failed to provide him with a reasonable

accommodation for his disability when it denied his request for a

change in tour of duty and/or a reassignment, and then charged him

with administrative leave instead of sick leave when he was absent as

a consequence of the denial of the requested accommodation(s).

In its FAD, the agency dismissed the complaint finding that it concerned

that same matter that complainant previously raised in the agency's

grievance process, which permitted claims of discrimination. The agency

rejected complainant's argument that making the same request again,

but for a different reason (as a reasonable accommodation for a claimed

disability, instead of a means of alleviating car pooling conflicts),

created a �new matter� each time the request was made and denied.

On appeal, complainant repeats the above argument, and further contends

that the denial of the grievance also constitutes a denial of a reasonable

accommodation, and that the agency's continued denials constitute an

on-going and continuing violation.

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 29 C.F.R. � 1614.107(a)(4)) provides that an agency may dismiss a

complaint where the complainant has raised the same matter in a negotiated

grievance procedure that permits claims of discrimination.

In the instant case, the record shows that complainant filed a grievance

concerning the same matter as that raised in the instant complaint:

the agency's purported denial of his request for a change in tour of

duty and/or a reassignment. We agree with the agency that complainant

has made the same request, but for different reasons; and that therefore

the matter raised in the instant complaint is in essence a reiteration

of matters raised in a previously filed grievance. Moreover, we

concur with the agency's determination that the request and denial for

�administrative leave� instead of sick leave also arises from the same

matter�the agency's denial of his request for a change in tour of duty

and/or a reassignment.

Furthermore, the record confirms that under the terms of the agency's

union agreement, employees have to right to raise matters of alleged

discrimination under the statutory procedure or the negotiated grievance

procedure, but not both. Therefore, when complainant filed his grievance

concerning the agency's denial of his request for a change in tour of

duty and/or a reassignment, he made his election; and, although he could

have also raised his disability discrimination claim in the grievance

process under this election, he did not do so.<2> Accordingly, because

complainant elected to pursue the matter of the agency's denial of his

request for a change in tour of duty and/or a reassignment within the

grievance process, we find that the agency properly dismissed the instant

complaint pursuant to 29 C.F.R. � 1614.107(a)(4).

For the reasons set forth herein, we find that the instant complaint

was properly DISMISSED and we AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), 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

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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.

2The record reflects that complainant filed his grievance in July 1998,

and then filed the instant EEO complaint approximately six months later,

in December 1998.