Christopher S. Bane, Complainant,v.Michael F. DiMario, Public Printer, Government Printing Office Agency.

Equal Employment Opportunity CommissionOct 5, 2000
01a03633 (E.E.O.C. Oct. 5, 2000)

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.