01a02624
07-13-2000
Ted S. Calica v. Department of Transportation
01A02624
July 13, 2000
Ted S. Calica, )
Complainant, )
)
v. ) Appeal No. 01A02624
) Agency No. 3-99-3083
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dismissing his complaint of unlawful employment
discrimination brought under Section 501 of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. � 791 et seq.<1> We accept the appeal
pursuant to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29
C.F.R. � 1614.405).
After unsuccessful EEO counseling, complainant filed a formal complaint
alleging that he was subjected to discrimination on the basis of his
physical disabilities when:
He was suspended for thirty days without pay in March 1999 for falling
asleep on the job; and,
He was subjected to a hostile work environment due to the agency's
failure to provide reasonable accommodations for his disabilities.
In its FAD, the agency dismissed the complaint, finding that complainant
had previously raised the same matter in a negotiated grievance process
without success. On appeal, complainant argues that his grievance and
his EEO complaints concern different matters. Specifically, complainant
argues that the grievance addresses the severity of the suspension, and
that the instant EEO complaint addresses the issue that the suspension
was evidence of the agency's failure to accommodate his disabilities,
as well as the additional issue of a hostile work environment.
In response, the agency argues that the grievance and the EEO complaint
raise essentially identical matters. The agency further argus that
because complainant initially elected to pursue the matter within the
union grievance process, which permitted claims of discrimination,
he could not now bring this claim in the EEO process.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(4)) provides that an agency may dismiss
a complaint where the complainant has raised the matter in a negotiated
grievance procedure that permits claims of discrimination.
In the instant case, the record shows that complainant filed a grievance
on March 5, 1999, concerning a thirty-day suspension. In challenging
the suspension, complainant argued that he fell asleep as a consequence
of his diabetes and sleep apnea disabilities. Complainant also claimed
that the agency had knowledge of his disability for many years, and
yet held him to the same standards as employees with no disabilities.
The agency denied the grievance.
Thereafter, on April 5, 1999, complainant contacted an EEO Counselor
claiming that the suspension was evidence of disability discrimination
due to failure to provide a reasonable accommodation, and also that it
constituted an example of the hostile work environment he was experiencing
because of his disabilities.
The record shows that under the terms of the agency's union agreement,
employees have the right to raise matters of alleged discrimination
under the statutory procedure or the negotiated grievance procedure,
but not both. After careful review, we find that the issues raised in
the grievance process are inextricably intertwined with those raised in
the EEO complaint. In both instances, complainant is challenging the
agency's decision to suspend him for sleeping on the job as disability
discrimination, i.e., that the agency failed to excuse the infraction
as a reasonable accommodation of his disability, thereby continuing a
claimed hostile work environment. Therefore, when complainant filed his
grievance concerning the unfairness of the suspension in light of his
disabilities, we find that he made his election.
Accordingly, because complainant elected to pursue his suspension
within the grievance process, and because he supports his challenge by
asserting that it motivated by disability discrimination, we find that
the agency properly dismissed the instant complainant pursuant to 29
C.F.R. � 1614.107(a)(4). The agency's decision is hereby AFFIRMED for
the reasons stated 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:
July 13, 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
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.