01A61711
08-09-2006
David H. Axton, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
David H. Axton,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A61711
Agency No. 420M06004L06
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 29, 2005, dismissing his complaint of unlawful
employment discrimination in violation of Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq. In his complaint, complainant alleged that he was
subjected to discrimination on the bases of disability and age when he was
given a letter requiring him to provide medical documentation to support
future use of sick leave.
The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(4)
for stating the same claim as a matter which has been raised in a
negotiated grievance procedure. Complainant appealed the dismissal.
EEOC Regulation 29 C.F.R. � 1614.301 provides that where 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 allegations of discrimination
to be raised in the negotiated grievance procedure, an election must be
made to proceed under either the negotiated grievance procedure or the EEO
complaint procedure (part 1614). The regulation provides that the election
is indicated by the filing of a written complaint or timely grievance,
whichever is done first. It also provides that 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 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.
As an employee of the Department of the Air Force, complainant is employed
by an agency subject to 5 U.S.C. 7121(d). Also, the record shows that he
was covered by a collective bargaining agreement that permitted allegations
of discrimination to be raised in the negotiated grievance procedure.
Complainant filed a grievance in September 2005 and an EEO complaint on the
same matter in December 2005. Accordingly, we find that the FAD properly
dismissed the complaint because complainant elected to grieve the issue in
his complaint.
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
August 9, 2006
__________________
Date