01a03034
07-25-2000
Michael L. Carter, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Michael L. Carter v. Department of the Navy
01A03034
July 25, 2000
.
Michael L. Carter,
Complainant,
v.
Richard J. Danzig,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A03034
Agency No. 00-65886-008
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision dated February 23, 2000 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, and Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq..<1> In
his complaint, complainant alleged that he was subjected to discrimination
on the bases of physical disability, and reprisal when:
On October 27, 1999, he was issued a 14-day suspension for failure to
follow the proper leave procedures and failure to follow instructions
as ordered.
The agency dismissed the complaint pursuant to 64 Fed. Reg. 37,644, 37,
656 (to be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(4),
for raising a matter that has previously been raised in the negotiated
grievance procedure that permits claims of discrimination.
The regulation set forth at 64 Fed. Reg. 37,644, 37,659 (1999) (to
be codified and hereinafter referred to as 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.
Complainant filed a step 3 grievance on November 4, 1999, concerning
the October 27, 1999 14-day suspension. Complainant also filed an
EEO complaint on December 12, 1999, involving the same suspension.
The agency is required to dismiss a complaint that was previously raised
in a negotiated grievance procedure. 29 C.F.R. � 1614.107(a)(4). The
record shows that complainant is covered by a collective bargaining
agreement which allows issues of discrimination to be raised pursuant
to the negotiated procedure. We therefore conclude, that the agency
properly dismissed the instant complaint. Accordingly, the agency's
decision to dismiss complainant's complaint was proper and is AFFIRMED
for the reasons set forth herein.
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, Acting Director
Office of Federal Operations
July 25, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
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.