01a50057
09-14-2005
Ben Johnson, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Ben Johnson v. Department of Transportation
01A50057
September 14, 2005
.
Ben Johnson,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A50057
Agency No. 2004-18088-FAA-06
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated August 6, 2004, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of race (African-American) and reprisal for prior EEO
activity when:
on April 5, 2004 he was suspended for eight days for errors on a travel
voucher.
In a final agency decision (FAD) dated August 6, 2004, the agency
dismissed the claim under 29 C.F.R. � 1614.107(a)(4), finding that
complainant had elected to pursue the matter under a negotiated grievance
procedure. The agency further found that other events identified by
complainant as constituting part of a continuing violation were untimely
filed �discrete events� under National Railroad Passenger Corp. v. Morgan,
122 S.Ct. 2061 (June 10, 2002). On appeal, complainant argues that he
did not bring up the issue of discrimination in his grievance.
We note that under 29 C.F.R. � 1614.301(a) a person may file a complaint
under either the negotiated grievance procedure or the EEO procedure, but
not both. Furthermore, a person �who files a grievance with an agency
. . . may not thereafter file a (discrimination) complaint on the same
matter . . . irrespective of whether . . . the grievance has raised an
issue of discrimination.� Id. The record shows that complainant filed
a grievance on his eight-day suspension on April 22, 2004 and filed his
Formal EEO Complaint on the same matter on July 2, 2004. Given the
fact that he filed his grievance before filing his EEO Complaint,
under the applicable regulations, his EEO Complaint must be dismissed.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 14, 2005
__________________
Date