Jerry L. Williams, Complainant,v.Norman Y. Mineta, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionMar 21, 2002
01A20970_r (E.E.O.C. Mar. 21, 2002)

01A20970_r

03-21-2002

Jerry L. Williams, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.


Jerry L. Williams v. Department of Transportation

01A20970

March 21, 2002

.

Jerry L. Williams,

Complainant,

v.

Norman Y. Mineta,

Secretary,

Department of Transportation,

Agency.

Appeal No. 01A20970

Agency No. 4-02-4003

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated November 9, 2001, 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.

and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),

as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal

in accordance with 29 C.F.R. � 1614.405.

The record reflects that on August 3, 2000, complainant filed a grievance

regarding the agency's refusal to change his job series from FV 0391 J

to FV 0856 J. On August 18, 2001, complainant filed an EEO complaint

alleging that he was subjected to discrimination on the bases of race

(African-American), sex (male), and disability when the agency refused

to change his job series.

The agency dismissed complainant's EEO complaint pursuant to EEOC

Regulation 29 C.F.R. � 1614.107(a)(4), for raising a matter that was

previously raised in a negotiated grievance procedure that permits claims

of discrimination.

The regulation set forth at 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 procedure, but not both.

The record indicates that on August 3, 2000, complainant filed a grievance

regarding the agency's refusal to change his job series. The record

contains the collective bargaining agreement which permits claims

of discrimination to be raised by an aggrieved employee during the

negotiated grievance procedure. Therefore, because complainant first

elected to file a grievance, the agency's decision is AFFIRMED for the

reasons set forth herein.

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

March 21, 2002

__________________

Date