01a51545r
11-07-2005
Edward Lopez, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Edward Lopez v. Department of Transportation (Federal Aviation
Administration)
01A51545
November 7, 2005
.
Edward Lopez,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 01A51545
Agency No. 2004-181163-FAA-03
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 4, 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 basis of national origin (Puerto Rican) when on June 14, 2004,
the agency changed complainant's employment status, limiting his career
opportunities and rendering his children ineligible to attend English
instruction school provided by DOD Antilles Consolidated School System
(ACSS) under Section 6, PL 81 - 874.
In its final decision, the agency dismissed complainant's complaint for
stating the same claim that had been settled by a settlement agreement
reached after complainant filed an unfair labor practice (ULP) charge on
the matter with the Federal Labor Relations Authority (FLRA), pursuant
to 29 C.F.R. � 1614.107(a)(1).
The record reveals that complainant, an Air Traffic Controller,
transferred from the FAA Control Tower in LaGuardia, New York to the
FAA in San Juan, Puerto Rico. In his formal EEO complaint, complainant
alleged that in a letter dated June 10, 2004, the agency notified him that
because of his job classification, his children could not attend English
instruction school provided by the ACSS. Complainant maintained that for
the previous 30 years, all dependent children of agency employees were
eligible to receive their education in English at no cost to the employee.
�The FAA stereotypically assumes that because my children's last name
is Lopez, that they are fluent in Spanish and, therefore, should have
no problem within the public school system of Puerto Rico,� he stated.
Although the agency dismissed complainant's complaint pursuant to 29
C.F.R. � 1614.107(a)(1), we find that this basis of dismissal is not
relevant to the instant matter because that provision concerns matters
previously raised in the EEO system, not in other fora. There is no
evidence that complainant has previously raised this matter in the EEO
process. Consequently, we find that the agency improperly dismissed
complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1).
However, we note that an employee who is subject to 5 U.S.C. � 7121
(d) may raise a claim of prohibited discrimination under either the EEO
complaint process or a negotiated grievance procedure that allows such
claims, but not both. 29 C.F.R. � 1614.301. The employee must elect
the forum in which to pursue the matter. When the grievance is filed
first under a negotiated grievance procedure that permits allegation of
discrimination to be raised, the individual may not subsequently file a
complaint of discrimination on the same matter. The agency must dismiss
such a complaint. 29 C.F.R. � 1614.107(a)(4).
In this matter, the record confirms that on July 30, 2004, complainant
filed through the Federal Labor Relations Authority (FLRA) a "Charge
Against An Agency" or unfair labor practices (ULP) charge. The charge
alleged that on June 14, 2004, the agency informed him that it was
changing the conditions of his employment by not certifying his children
to attend the ACSS for the 2004 - 2005 school year, in violation of 5
USC Section 7116(a) subsections (1), (5), and (8). The record further
reveals that the parties reached a settlement on the ULP charge in
September 2004.
We note that the record does not contain a copy of the collective
bargaining agreement (CBA), which might have indicated whether ULP charges
are in the negotiated grievance process and if claims of discrimination
can be raised in the process. Therefore, we further find that there is
no evidence that complainant has filed a grievance on the same matter
that is raised in his instant EEO complaint.
Accordingly, the agency's final decision is REVERSED. The claim is hereby
REMANDED to the agency for processing in accordance with the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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
(R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_November 7, 2005_____________
Date