01a53244
09-27-2005
Fridrikh Begelmakher, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Fridrikh Begelmakher v. Social Security Administration
01A53244
September 27, 2005
.
Fridrikh Begelmakher,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A53244
Agency No. 04-338-SSA
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated March 1, 2005, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. In his complaint, complainant alleged that he was subjected
to discrimination on the basis of disability<1> when:
His request for a transfer as a reasonable accommodation was denied.
In a final agency decision (FAD) dated March 1, 2005, the agency dismissed
the claim under 29 C.F.R. � 1614.107(a)(4), finding that complainant had
elected to pursue the matter under a negotiated grievance procedure.
The FAD noted that complainant had also requested a hardship transfer
under the negotiated grievance procedure and found that the hardship
transfer request and the transfer request as a reasonable accommodation
for complainant's disability were inextricably intertwined. We note that
under � 1614.107(a)(4), the agency shall dismiss a complaint �where the
complainant has raised the matter in a negotiated grievance procedure
that permits allegations of discrimination.� Furthermore, under �
1614.301(a), an �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 � 1614 irrespective of whether the . . . grievance has raised the
issue of discrimination.�
The record shows that complainant, filed his grievance on May 7, 2004 and
his EEO Complaint on June 13, 2004. Complainant maintains that he made
two separate and unrelated transfer requests, one based on hardship and
one as a reasonable accommodation under the Rehabilitation Act. While he
concedes the requests were made at the same time, in the same letter,
he insists his intent from the start was to pursue his rights under
two separate procedures. Regardless of complainant's intent, however,
the record shows that both requests were based on his emotional illness,
and both consisted of transfer requests from his current location to the
Avenue X location. We are therefore unpersuaded by his argument that the
requests are not inextricably intertwined. While complainant sought to
pursue his rights under both procedures separately, under � 1614. 301(a),
once his requests were denied, he could not contest such denials
under both procedures, but was required to elect either the negotiated
grievance procedures or the EEO process. Given the fact that he filed
his grievance before filing his EEO Complaint, under the applicable
regulations, his EEO complaint must be dismissed. Accordingly, the
agency's final decision dismissing complainant's complaint is affirmed.
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 (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
September 27, 2005
__________________
Date
1For purposes of this decision the Commission assumes without finding that
complainant is an individual with a disability. 29 C.F.R. � 1640.2(g)(1).