01A05091
11-29-2000
Daniel J. Peterson, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Daniel J. Peterson v. Department of Veterans Affairs
01A05091
November 29, 2000
.
Daniel J. Peterson,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A05091
Agency No. 200M-1179
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision pertaining to 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.<1> The Commission accepts the
appeal in accordance with 29 C.F.R. � 1614.405.
On April 5, 2000, complainant contacted the EEO office claiming he
was discriminated against when from September 1999 to the present,
he was regularly scheduled for weekend assignments while a female
employee was not. Informal efforts to resolve complainant's concerns
were unsuccessful. On June 2, 2000, complainant filed a formal complaint
on the basis of sex.
On June 27, 2000, the agency issued a decision dismissing the complaint
on the grounds that complainant previously raised the matter under a
negotiated grievance procedure that permits allegations of discrimination.
According to the agency, complainant filed a Step 1 Grievance with AFGE
Local 2270 on December 14, 1999, regarding being assigned to work on
Saturdays and Sundays. The grievance was denied at Step 3 on February
14, 2000. Subsequent to the grievance denial, complainant contacted the
EEO office on April 5, 2000. The agency also dismissed the complaint for
untimely EEO Counselor contact, finding that the April 5, 2000 contact
was more than forty-five days after the alleged event.
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.
The record reflects that on December 14, 2000, complainant filed a
grievance regarding Saturday and Sunday work assignments. On February
14, 2000, complainant's grievance was denied at the Step 3 level.
Further, the agency has provided a copy of the �Master Agreement�
between the agency and the American Federation of Government Employees.
Provision 3A of the agreement states that actions regarding discrimination
may be filed under �the statutory procedure or the negotiated grievance
procedure but not both.� Further, Provision 3C of the agreement provides
that an employee is deemed to have exercised the option when he timely
initiates an action under the applicable statutory procedure or files
a timely grievance in writing under the negotiated grievance procedure,
whichever event occurs first.
In the instant case, complainant clearly pursued the matter through
the grievance process. He contacted an EEO office only after his
grievance was denied. Therefore we find that the agency's dismissal
of the complaint was proper for the reason stated herein. Because of
our disposition, we determine that it is not necessary to address the
agency's decision to dismiss the complaint on alternative grounds.
According, the agency's decision to dismiss the complaint was proper
and is hereby 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
November 29, 2000
__________________
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 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.