01a02049
05-30-2000
Brian James, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Brian James, )
Complainant, )
)
v. ) Appeal No. 01A02049
) Agency No. 3-00-3014
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
)
DECISION
Complainant filed an appeal with this Commission from a final decision of
the agency concerning 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> The final agency decision was issued
on December 16, 1999. The appeal was postmarked January 4, 2000.
Accordingly, the appeal is timely (see 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter cited as 29 C.F.R. �1614.402(a)), and
is accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue presented on appeal is whether the agency properly dismissed
the complaint on the grounds that complainant elected to pursue the
matters raised therein under the agency's negotiated grievance procedure.
BACKGROUND
In a formal EEO complaint dated October 22, 1999, complainant claimed that
he was discriminated against on the basis of his religion (Christian)
when the Air Traffic Manager, Gainesville Automated Flight Service
Station (AFSS) knowingly violated his civil rights by taking adverse
personnel actions against him and by restricting his dissemination of
religious material in the workplace. Complainant stated that the Air
Traffic Manager mischaracterized his Christian beliefs and the teachings
of the Holy Christian Bible as inflammatory, intimidating, offensive,
disruptive, and unacceptable.
The record reveals that on April 6, 1999, complainant filed a grievance
with regard to being issued a directive to undergo a psychiatric
examination. Complainant stated that he was also directed to sign an
authorization for release of the examination results to the Regional
Flight Surgeon. In another grievance filed on April 6, 1999, complainant
stated that during a discussion of these directives, he was told that
the agency would propose a removal action if he failed to comply with
the directives. On April 6, 1999, complainant filed a third grievance
wherein he claimed that the Air Traffic Manager failed to notify him
of his right to be accompanied by a Union representative during a
meeting involving a disciplinary or potential disciplinary situation.
In a fourth grievance filed on April 6, 1999, complainant claimed that
he was listed as absent without leave for March 25, 1999, rather than
being granted sick leave. In a fifth grievance filed on April 6, 1999,
complainant claimed that he received a letter of warning. On April 30,
1999, complainant filed a grievance wherein he claimed that he did not
receive premium pay after he was told by the Air Traffic Manager that
he would receive premium pay.
On August 12, 1999, complainant filed a grievance wherein he claimed
that he was issued a five-day suspension on the grounds that he brought
inflammatory and/or intimidating religious material into the workplace.
In a second grievance filed on August 12, 1999, complainant claimed that
the agency did not impose the suspension within a reasonable time frame
as it waited six months to take formal disciplinary action against him.
On August 25, 1999, complainant filed four separate grievances wherein he
claimed that his basic watch schedule assignment was unilaterally changed.
On September 1, 1999, complainant filed a grievance wherein he claimed
that his request to swap shifts with another employee was denied.
In its final decision, the agency dismissed the complaint on the grounds
that complainant elected to proceed pursuant to the agency's negotiated
grievance procedure. The agency determined that complainant filed
thirteen grievances during the period April 6, 1999 through August
31, 1999, and that these grievances contain the identical claims of
discrimination found in the instant complaint.
On appeal, complainant states that his union representative encouraged
him to grieve the matters at issue as violations of the collective
bargaining agreement rather than violations of his civil rights.
ANALYSIS AND FINDINGS
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 claims 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 this part 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.
We note that complainant does not dispute that the instant complaint
raises issues that were addressed in his grievances. However, upon
review of the record, we note that the agency failed to insert a copy of
the collective bargaining agreement. In light of the fact that we are
unable to determine whether the negotiated grievance procedure permits
claims of discrimination, we find that the agency failed to substantiate
the basis for its final decision. See Marshall v. Department of the
Navy, EEOC Request No. 05910685 (September 6, 1991). Accordingly, the
agency's decision to dismiss the complaint is REVERSED. This complaint
is hereby remanded for further processing pursuant to the ORDER below.
CONCLUSION
The agency's dismissal of the subject complaint is hereby REVERSED.
The complaint is hereby REMANDED for further processing pursuant to the
ORDER below.
ORDER (E0400)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to
the complainant that it has received the remanded claims within thirty
(30) calendar days of the date this decision becomes final. The agency
shall issue to complainant a copy of the investigative file and also shall
notify complainant 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 complainant
requests a final decision without a hearing, the agency shall issue
a final decision within sixty (60) days of receipt of complainant's
request.
A copy of the agency's letter of acknowledgment to complainant 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 (K1199)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. �1614.503(a). The complainant 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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. ��1614.407, 1614.408) and 29 C.F.R. �1614.503(g).
Alternatively, the complainant 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. ��1614.407 and 1614.408. 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 complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.409).
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
(R0400)
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 WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 (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:
May 30, 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,
and the agency on:
DATE 1 On 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.