01A40960_r
03-31-2004
Konstantinos Koliopoulos, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Konstantinos Koliopoulos v. Department of Veterans Affairs
01A40960
March 31, 2004
.
Konstantinos Koliopoulos,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A40960
Agency No. 200H-0604-2003103828
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated October 23, 2003, 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 formal EEO complaint, filed on September 11, 2003, complainant
alleged that he was subjected to discrimination in reprisal for prior
protected activity when:
1. on May 12, 2003, his supervisor informed him that he would need
to be seen by a VA physician to excuse him for not staying after his
regular tour of duty ended to work an additional 8 hour shift;
2. on July 11, 2003, his supervisor ordered him to work 8 hours of
overtime;<1>
3. on July 15, 2003, while obtaining a voluntary witness statement in
Building 7, his supervisor ordered him to leave the building;
4. on July 16, 2003, his supervisor told him he would have to take a
15-minute break instead of a personal break;
5. on July 16, 2003, during his meal break, his supervisor would not
let him use the Police Operations computer to review his electronic
messages and told him to leave the area; and
6. on July 17, 2003, he informed his supervisors that he needed to
complete a Uniform Offense Report and asked them to let him know when
it would be convenient for him to come to the Police office to finish
the report but his supervisors failed to notify him.
The agency dismissed the complaint on the grounds that complainant
raised the matter in a negotiated grievance procedure that permits
allegations of discrimination pursuant to 29 C.F.R. � 1614.107(a)(4).
According to the agency, complainant filed a Step 2 grievance on July 25,
2003, regarding incidents that occurred on May 12, 2003, July 11, 2003,
and July 15-17, 2003.<2>
On appeal, complainant acknowledges that the date and times of his
claims in the instant case are the same as in his grievance. However,
complainant argues that his grievance was in regard to his supervisor's
"abusive authority and disrespectful conduct," while his complaint
pertained to discrimination based on reprisal. In response, the agency
requests that the Commission affirm its final decision.
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 claims 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.
The record in the instant case contains a copy of complainant's
grievance dated July 25, 2003. Therein, complainant raised the alleged
discriminatory events that occurred on May 12, 2003, July 11, 2003, and
July 15-17, 2003. The record also contains a copy of complainant's EEO
complaint wherein he checked the box indicating he had filed a grievance.
Furthermore, the record contains a copy of the "Master Agreement
between the Department of Veterans Affairs and the American Federation
of Government Employees." Therein, Article 42, Section 3, subsection
(A) 3 provides that "the following actions may be filed either under
the statutory procedure or the negotiated grievance procedure but not
both. . . . . Discrimination (5 USC 2302(b)(1)."
Because complainant filed his grievance before he filed his formal EEO
complaint, we find that he elected the grievance process. Therefore,
we find that the agency properly dismissed the complaint on the grounds
that complainant raised the matter in a negotiated grievance procedure
that permits allegations of discrimination pursuant to 29 C.F.R. �
1614.107(a)(4).
Accordingly, the agency's final decision dismissing the instant 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
March 31, 2004
__________________
Date
1The agency inadvertently identified the
date of alleged discriminatory event as June 11, 2003, instead of July
11, 2003.
2The agency inadvertently identified the date of alleged discrimination
in May 2003, as May 14, 2003, instead of May 12, 2003.