01a03633
10-05-2000
Christopher S. Bane, Complainant, v. Michael F. DiMario, Public Printer, Government Printing Office Agency.
Christopher S. Bane v. Government Printing Office
01A03633
October 5, 2000
.
Christopher S. Bane,
Complainant,
v.
Michael F. DiMario,
Public Printer,
Government Printing Office
Agency.
Appeal No. 01A03633
Agency No. 0008
DECISION
Complainant filed a timely appeal with this Commission from an
agency decision dated April 13, 2000, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1> In
his complaint, filed on January 5, 2000, complainant alleged that he
was subjected to discrimination on the basis of disability (herniated
disc depression) when:
Complainant was denied a pay increase of fifty cents per hour.
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a)(4), for raising the same matter in
a negotiated grievance procedure. Specifically, the agency stated that
complainant filed a grievance on November 9, 1999, alleging that the
agency violated the Wage Agreement, Master Agreement when it refused to
give complainant a pay increase despite the fact that he completed the
required courses of study and informed complainant that he would not
receive the pay increase because he was on light duty. According to
the agency, complainant then filed an EEO complaint alleging that the
agency denied him a pay increase of fifty cents per hour despite the fact
that he completed the required training requirements. The agency stated
that the agency's Master Agreement permits claims of discrimination to
be raised in the grievance process.
On appeal, complainant argues that his present complaint is different
from the grievance he filed in November 1999. Specifically, complainant
states that the grievance challenged a violation of the Wage Agreement,
Master Agreement, however, the EEO complaint alleged violation of the
federal disability regulations.
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.
In the present case, we find that the agency properly dismissed the
complaint for alleging the same matter raised in a grievance. Although
complainant argues that his grievance addresses contract violations,
his grievance statement refers to the agency's refusal to give him a pay
increase until he returns to full duty. Complainant filed a formal EEO
complaint on January 5, 2000, alleging that the denial of the premium
pay was the result of disability discrimination. A review of the
record reveals that the negotiated grievance procedure permits claims
of employment discrimination to be raised. Therefore, we find that the
grievance addresses the same matter described in the formal complaint,
namely the denial of premium pay. Consequently, we find that complainant
has elected to pursue the grievance process.
Accordingly, the agency's decision to dismiss complainant's complaint
was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
October 5, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.