0120093295
01-29-2010
Dominic Prestia, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, Agency.
Dominic Prestia,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120093295
Agency No. 200922724FAA05
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 16, 2009, 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. In his
complaint, complainant alleged that he was subjected to discrimination
on the basis of reprisal for prior protected EEO activity under a statute
that remains unspecified in the record when:
1. On or about April 1, 2009, complainant was reassigned to another
position.
The agency dismissed the claim pursuant to 29 C.F.R. � 1614.107(a)(4)
on the grounds that complainant had previously filed a grievance
on the same matter. On appeal, complainant argues that the agency
misconstrued his claim and that his claim is not about the reassignment.
Instead, complainant contends that during an agency investigation into
harassment allegations another employee (CW) provided "irrelevant and
false" statements about complainant's wife "in reprisal for my wife's
protected activities," complainant's Appeal Brief, and that this led
to the reassignment. Complainant maintains he merely mentioned the
reassignment to show how he was harmed by CW's actions but that his claim
is about CW's allegedly false statements. Id. In addition, complainant
argues, he is not covered by the Collective Bargaining Agreement referred
to by the agency in its FAD. Id. Instead, complainant maintains,
he is covered by a different agreement that does not contain the same
language quoted by the agency. Id. Complainant, however, has provided
no copies of such a different agreement.
The regulation set forth at 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 on April 9,
2009, complainant filed a grievance regarding being administratively
reassigned from the position of Support Staff Specialist to a position
in the Operations Support office, before his formal EEO complaint was
filed on June 18, 2009. Additionally, 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. Complainant contends
that he is not covered by the union agreement referred to by the agency,
but by a different agreement that does not contain language prohibiting
employees from raising discrimination allegations in both forums.
Complainant, however, has not produced copies of such an alternative
union agreement. As the record indicates that complainant elected to
pursue the matter within the grievance procedure, we find that the agency
properly dismissed claim (1) pursuant to 29 C.F.R. � 1614.107(a)(4).
As regards complainant's contention that the agency misconstrued
his claim, we find that complainant has no standing to bring a claim
where, allegedly, CW lied about complainant's wife "in reprisal for
[complainant's] wife's protected activities" and hence the claim as
described by complainant on appeal fails to state a valid claim of
employment discrimination under the laws and regulations administered
by this Commission. Accordingly, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
January 29, 2010
__________________
Date
2
0120093295
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120093295