01982336
03-05-1999
Harold Lee, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Harold Lee, )
Appellant, )
)
v. ) Appeal No. 01982336
) Agency No. 1-98-1012
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
______________________________)
DECISION
Appellant filed a timely appeal with this Commission from a final
agency decision (FAD) dismissing his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. � 2000e et seq.; the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.;
and � 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791 et seq. Appellant alleged that he was discriminated against on
the bases of race (Black), national origin (American), sex (Male), age
(48 years), and physical disability (Hypertension and Aortic Aneurism)
when he was not permitted to return to work following an extended illness.
The issue on appeal is whether the agency properly dismissed appellant's
complaint on the grounds that his allegation of discrimination was raised
in his negotiated grievance proceeding.
The record reveals that after the agency did not permit him to return
to work because of his medical condition, appellant filed a grievance
on September 2, 1997. In his grievance, appellant stated that, as a
result of his disability, he was not being afforded an equal employment
opportunity by the Sector Maintenance Officer who denied his request to
return to work; that he was not afforded accommodation or reassignment to
a vacant position; and that he was determined to be disabled for Federal
Aviation Administration service and consequently informed that he could
submit a disability retirement packet.
Appellant sought EEO counseling on October 7, 1997, and subsequently filed
a formal EEO complaint on November 1, 1997, alleging discrimination on
the bases set forth above.
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 allegations 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. It is
on this basis that the agency dismissed appellant's complaint.
The record in this case clearly establishes that appellant's formal EEO
complaint was filed after his grievance. Furthermore, on appeal, the
agency provided a copy of relevant portions of appellant's collective
bargaining agreement permitting allegations of discrimination to be
raised. The issues set forth in appellant's complaint are identical to
the issues set forth in his grievance. Therefore, the agency properly
dismissed appellant's complaint, pursuant to 29 C.F.R. � 1614.107(d),
because appellant had already elected to use the negotiated grievance
process to address his allegation of discrimination.
Accordingly, the agency's final decision dismissing appellant's complaint
is hereby AFFIRMED.
EEOC Regulation 29 C.F.R. � 1614.402(a) provides that a grievance
decision may be appealed within thirty (30) days of receipt of a decision
referred to in 29 C.F.R. � 1614.401(c). The Commission notes, however,
that in this instant case, the agency's final grievance decision dated
September 18, 1997, failed to provide appellant with appeal rights to
the Commission. In Granger v. Department of Transportation, EEOC Appeal
No. 01963235 (August 20, 1997), the agency made a similar error and the
Commission ordered the agency to re-issue the final grievance decision
with the appropriate appeal rights. Accordingly, the agency shall comply
with the following ORDER.
ORDER
Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall re-issue appellant the final grievance decision
in this matter with appropriate appeal rights to the Commission pursuant
to 29 C.F.R. �� 1614.301(a) and 1614.401(c). A copy of the re-issued
final grievance decision shall be sent to the Compliance Officer as
referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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. �� 1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993).
If the appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.410.
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.
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. 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 (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.F.R.).
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:
March 5, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations