Stewart W. Pugh, Complainant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionJan 6, 2000
01986904 (E.E.O.C. Jan. 6, 2000)

01986904

01-06-2000

Stewart W. Pugh, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.


Stewart W. Pugh, )

Complainant, )

)

v. ) Appeal No. 01986904

) Agency No. 4971067

Rodney E. Slater, )

Secretary, )

Department of Transportation, )

Agency. )

____________________________________)

DECISION

On September 17, 1998, complainant filed a timely appeal with this

Commission from a final agency decision pertaining to 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.<1> The

agency framed complainant's complaint as alleging that he was subjected to

discrimination on the basis of religion (none) when he was not selected

for promotion to grade 12 in September 1996, and that he became aware

of his non-selection in January 1997.

By letter dated August 26, 1998, the agency dismissed complainant's claim

pursuant to EEOC Regulations because it raised the same matter as that

raised in a negotiated grievance procedure that permits allegations of

discrimination. Specifically, the agency determined that complainant

had filed a grievance regarding the same non-promotion referenced in

his EEO complaint.

On appeal, complainant contends that �I was never told that since I

had an EEO Case pending that I could not file a grievance,� and states

that �I filed my EEO complaint first.� We note from the record that

complainant's formal written complaint was dated January 30, 1997,

and that a copy of his filed grievance indicates that it was signed and

dated on October 28, 1997.

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. This subsection

also provides that an election to proceed under 1614 is indicated by the

"filing of a written complaint," while an election to proceed under a

negotiated grievance procedure is indicated by the "filing of a timely

written grievance." 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.

In the present case, however, it is clear from the record that complainant

filed his EEO complaint prior to filing his grievance and, in effect,

elected to proceed under part 1614. We therefore find that complainant's

filing of his written complaint constituted an election of forum.

29 C.F.R. � 1614.301(a). Moreover, EEOC Management Directive (MD)

110 requires that agency EEO Counselors advise all aggrieved persons of

the need to elect the process they wish to pursue if, as here, certain

negotiated grievance procedures apply. EEOC-MD 110 (2-5), as revised,

November 9, 1999. Complainant here asserts that he was never told

that he had to elect between filing a complaint and a grievance, and

the agency has provided no evidence to show that it actually informed

complainant that he must elect which process to pursue. Although the

regulations do not anticipate that an aggrieved individual will be able

to file both a complaint and a later grievance on the same matter,<2>

in the absence of evidence that complainant was informed of the need to

elect between the two processes, we will not foreclose the pursuit of

his original election under part 1614.

Accordingly, the agency's decision to dismiss complainant's complaint

was improper, and is hereby REVERSED. The complaint is REMANDED to the

agency for further processing in accordance with this decision and the

Order below.

ORDER (E1199)

The agency is ORDERED to process the remanded claims in accordance with

64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to

the complainant that it has received the remanded claims within thirty

(30) calendar days of the date this decision becomes final. The agency

shall issue to complainant a copy of the investigative file and also shall

notify complainant of the appropriate rights within one hundred fifty

(150) calendar days of the date this decision becomes final, unless the

matter is otherwise resolved prior to that time. If the complainant

requests a final decision without a hearing, the agency shall issue

a final decision within sixty (60) days of receipt of complainant's

request.

A copy of the agency's letter of acknowledgment to complainant and an

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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

complainant. If the agency does not comply with the Commission's order,

the complainant may petition the Commission for enforcement of the order.

29 C.F.R. � 1614.503(a). The complainant 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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �

1614.503(g). Alternatively, the complainant 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. �� 1614.407

and 1614.408. 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 complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION

(R1199)

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:

January 6, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant1On 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.

2 Under 29 C.F.R. � 1614.301(a), �an aggrieved employee who files a

complaint under this part may not thereafter file a grievance on the

same matter.�