01993871
12-06-2000
Salvatore Giove, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Salvatore Giove v. Department of Transportation
01993871
December 6, 2000
.
Salvatore Giove,
Complainant,
v.
Rodney E. Slater,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 01993871
Agency No. 5995019
DECISION
BACKGROUND
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD), dated November 18, 1998, 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.<1> In his complaint, complainant alleged that he was discriminated
against on the basis of national origin (Italian) when:
1) on September 4, 1998 he was removed from his position as an Air
Traffic Controller;
from 1988-90, April 18, 1997, and October through November 12, 1998,
he was subjected to slanderous remarks by his supervisors and coworkers
in relation to his national origin through verbal comments as well as
through deposition and other written documentation;
3) on January 8, 1997, his request for a transfer to the Airway
Facilities Division was denied;
4) in April of 1997, he received a letter of reprimand;
5) in January of 1997, other employees recommended that complainant's
actions be documented for the purpose of terminating his employment;
6) in March of 1996, complainant was required to serve as the
controller-in-charge for longer periods of time than his counterparts
and his work schedule was adjusted by his supervisor;
7) during the Spring of 1995, complainant received an unfair performance
evaluation;
8) in September of 1993, complainant was denied time off for military
training;
9) in December of 1992, coworkers were verbally abusive to complainant
while he was attempting to control air traffic; and
10) from 1988 to 1990, his requests for training and to transfer to
other air traffic facilities were denied.
The agency dismissed the complaint in its entirety. It dismissed claim 1
pursuant to EEOC Regulation 29 C.F.R. � 1614.107(a)(4) on the ground that
complainant had raised the same claim in a negotiated grievance procedure
that permitted allegations of discrimination. The agency dismissed claims
2 through 10 pursuant to 29 C.F.R. � 1614.107(a)(2) on the ground that
these matters had not been brought to the attention of an EEO counselor
and were not like or related to any matter that had been brought to the
attention of an EEO counselor. In addition, the agency dismissed claims
2 through 10 (with the exception of the allegations in claim 2 relating to
events in 1998) pursuant to 29 C.F.R. � 1614.107(a)(2) on the alternative
ground that complainant did not initiate contact with an EEO counselor
within the 45-day period mandated by the applicable regulations.
ANALYSIS AND FINDINGS
Claim 1
The agency dismissed this claim on the ground that complainant had raised
the matter in a negotiated grievance procedure that permitted allegations
of discrimination to be raised.
Section 29 C.F.R.� 1614.107(a)(4) of the Commission's regulations
provides, in relevant part, that an agency shall dismiss a complaint,
"[w]here the complainant has raised the matter in a negotiated grievance
procedure that permits allegations of discrimination...." Here, the
record reflects that complainant raised the question of his termination,
which is also the subject of Claim 1, in a previously filed grievance
and that the negotiated grievance procedure permitted allegations of
discrimination to be raised. Accordingly, the agency properly dismissed
Claim 1. See Lavergne-Kachur v. Department of the Treasury, EEOC Request
05980736 (November 4, 1999).<2>
Claims 2 - 10
EEOC Regulation 29 C.F.R. � 1614.107(a)(2)) states, in pertinent part,
that an agency shall dismiss a complaint which raises a matter that has
not been brought to the attention of an EEO Counselor, and is not like or
related to a matter on which the complainant has received counseling. A
later claim or complaint is "like or related" to the original complaint if
the later claim or complaint adds to or clarifies the original complaint
and could have reasonably been expected to grow out of the original
complaint during the investigation. See Scher v. United States Postal
Service, EEOC Request No. 05940702 (May 30, 1995); Calhoun v. United
States Postal Service, EEOC Request No. 05891068 (March 8, 1990).
The record reflects that the only issue complainant raised with the EEO
Counselor with particularity was his September 4, 1998 termination, which
formed the basis for Claim 1 of the complaint. The other events which
form the basis for Claims 2 through 10 were not specifically discussed
with the EEO Counselor.<3> Nor are the matters raised in Claims 2
through 10 like or related to any matter raised with the counselor.
Accordingly, these claims were properly dismissed.
CONCLUSION
For the foregoing reasons, the FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0800)
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION
(R0400)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 (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
December 6, 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2We take administrative notice that complainant's appeal from the denial
of his grievance, Giove v. Department of Transportation, EEOC Appeal
02990012, is pending before the Commission.
3In addition to complaining about his termination, complainant informed
the counselor only in the most general terms about mistreatment
he received at the hands of the agency. This lack of specificity
is reflected in the counselor's report which recites �[complainant]
states that he felt he was treated differently over the years at Grand
Junction Tower due to his Italian background and from [sic] originally
being from the East coast. [Complainant] was not specific in these
events nor dates.�