01a03509
07-21-2000
George S. Sheldon, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
George S. Sheldon v. Department of the Army
01A03509
July 21, 2000
.
George S. Sheldon,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A03509
Agency No. FO9905J0210
DECISION
On April 10, 2000, George S. Sheldon (hereinafter referred to as
complainant) initiated an appeal to the Equal Employment Opportunity
Commission (Commission) with regard to his complaint of discrimination
in violation of � 501 of the Rehabilitation Act of 1973, as amended,
29 U.S C. � 791 et seq.<1> The final agency action was dated March 16,
2000. Accordingly, the appeal is timely and is accepted by this Commission
in accordance with 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified
at 29 C.F.R. � 1614.405).
Complainant contacted an EEO Counselor on May 24, 1999, and subsequently
filed a formal complaint alleging that he had been discriminated against
on the basis of his disability (cancer) when he was denied advanced sick
leave in April 1999. The agency dismissed the complainant on the grounds
that complainant elected to pursue the matter through the negotiated
grievance process.
The EEOC Regulations provide that an agency may dismiss a complaint where
the complainant has elected to pursue the issues under a negotiated
grievance procedure that permits allegations of discrimination to be
raised. 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.107(4)). The record shows that an Unfair
Labor Practice charge was filed by the union on May 20, 1999, regarding
the denial of advanced sick leave to complainant. The charge states that
the action was taken, in part, because complainant had filed prior EEO
complaints. Further, the Labor - Management Relations Agreement provides
that employees may pursue discrimination allegations through the grievance
process. Therefore, based upon a review of the record, the Commission
finds that the agency properly dismissed the complaint herein. Accordingly
it is the decision of the Commission to AFFIRM the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified
and hereinafter referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
July 21, 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.