Frank J. Ferlita, Appellant,v.Andrew M. Cuomo, Secretary, Department of Housing and Urban) Development, Agency.

Equal Employment Opportunity CommissionSep 9, 1999
01981367 (E.E.O.C. Sep. 9, 1999)

01981367

09-09-1999

Frank J. Ferlita, Appellant, v. Andrew M. Cuomo, Secretary, Department of Housing and Urban) Development, Agency.


Frank J. Ferlita v. Department of Housing and Urban Development

01981367

September 9, 1999

Frank J. Ferlita, )

Appellant, )

)

v. ) Appeal No. 01981367

) Agency No. AT 97 23

Andrew M. Cuomo, )

Secretary, )

Department of Housing and Urban)

Development, )

Agency. )

)

DECISION

Upon review, we find that the agency properly dismissed appellant's

complaint, pursuant to 29 C.F.R. �1614.107(d), on the grounds that

appellant elected to proceed under a negotiated grievance procedure that

permits allegations of discrimination. Appellant filed a grievance

on July 2, 1997, under the agency's collective bargaining agreement

with regard to the failure of an agency official to take action

against another employee for sending a message about appellant that

appellant considered insulting and defamatory. On August 27, 1997,

appellant filed a formal EEO complaint with regard to the same issue.

The agency's collective bargaining agreement permits allegations of

discrimination to be raised via the negotiated grievance procedure.

The record indicates that appellant withdrew his grievance on September

3, 1997. However, appellant's withdrawal of his grievance does not negate

his prior election of the negotiated grievance procedure. The Commission

has held that the withdrawal of a grievance does not abrogate its effect

for purposes of an election. Bracket v. Department of the Air Force, EEOC

Request No. 05880427 (May 23, 1988); Marsh v. Department of the Treasury,

EEOC Request No. 05910393 (August 8, 1991). Thus, appellant's subsequent

decision to withdraw his grievance did not rescind the election he made

initially to pursue that avenue of redress. Accordingly, the final

agency decision dismissing appellant's complaint on the grounds that

appellant elected to pursue the matter through the negotiated grievance

process was proper and is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

Sept. 9, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations