01A41262_r
04-15-2004
Austin L. Curtis, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Austin L. Curtis v. Department of the Air Force
01A41262
April 15, 2004
.
Austin L. Curtis,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A41262
Agency No. 4L0J04009L04
DECISION
Complainant initiated contact with an EEO Counselor on June 24, 2003.
On November 5, 2003, complainant filed a formal EEO complaint wherein he
claimed that he was discriminated against on the bases of his sex (male),
race (Black), color (black) and in reprisal for previous grievances that
he had filed when on June 23, 2003, he received his performance appraisal.
Complainant stated that he received lower ratings than he deserved and
he did not receive a cash award.
By decision dated November 12, 2003, the agency dismissed the complaint
pursuant to 29 C.F.R. �1614.107(a)(4) on the grounds that complainant
made an election to proceed under the negotiated grievance procedure.
The record indicates that complainant filed a grievance on July 8, 2003,
which concerned complainant receiving lower ratings on his performance
appraisal than he believed he merited as well as complainant not
receiving a cash award based on his performance. A review of the
Collective Bargaining Agreement reveals that claims of discrimination
may be raised. The same issues were raised by complainant in his formal
EEO complaint dated November 5, 2003. By filing the grievance before
the complaint, we find that complainant made an election to proceed
through the negotiated grievance process and that once he made such an
election he could no longer file an EEO complaint on the same matters.
Accordingly, the agency's dismissal of this 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
April 15, 2004
__________________
Date