01975561
02-11-1999
John D. Valle, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
John D. Valle v. Department of Transportation
01975561
February 11, 1999
John D. Valle, )
Appellant, )
)
v. ) Appeal No. 01975561
) Agency No. 3-97-3049
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated June 10, 1997, which the agency issued pursuant to EEOC
Regulation 29 C.F.R. �1614.107(b) and (d). The Commission accepts the
appellant's appeal in accordance with EEOC Order No. 960, as amended.
The final agency decision defined the appellant's April 9, 1997 complaint
as raising two issues: (1) whether the appellant was discriminated
against when his facility manager touched him on several occasions
(the last occasion taking place in September 1996); and (2) whether
the appellant was discriminated against when he was given a letter of
reprimand, decertified, and retrained because of the way he conducted
himself while giving a pilot briefing. The agency dismissed allegation
1 based on a finding that the appellant's February 16, 1997 request for
counseling was untimely. The agency dismissed allegation 2 on the ground
that the appellant had filed prior grievances on the matters raised in
allegation 2.
On appeal, the appellant represents that he and a co-worker met with an
EEO counselor on October 28, 1996, to file a complaint regarding the
incident of physical harassment which allegedly occurred on October
1, 1996. He represents that he contacted a different counselor in
February 1997 because he had lost confidence in the first counselor.
The appellant also alleges that there was an instance of verbal harassment
on January 15, 1997.
The Commission finds that the January 15, 1997 incident does not rise to
the level of harassment. According to the appellant's complaint, on that
date his supervisor said to him, "good night John." When the appellant
did not respond, the supervisor allegedly said, "Oh, you'll lighten up."
The Commission finds, however, that if the appellant sought counseling in
October 1996, then his physical touching allegation was timely raised.
However, the record does not provide sufficient evidence for the
Commission to determine when the appellant first sought EEO counseling
regarding the touchings. Therefore, the Commission vacates the agency's
dismissal of allegation 1 and remands the matter for an investigation
as to timeliness.
As to allegation 2, the appellant contends on appeal that he did not
file grievances alleging discrimination or harassment. The appellant
represents that he filed his grievances because he was decertified,
reprimanded and retrained in violation of the proper disciplinary
procedures set forth in the collective bargaining agreement.
EEOC Regulation 29 C.F.R. �1614.301(a) provides that an 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 even if the grievance did not raise
an issue of discrimination. The record demonstrates that Article 9,
Section 4, of the collective bargaining agreement permits allegations
of discrimination to be raised in the grievance procedure. Therefore,
the Commission finds that since the appellant first challenged his
decertification, reprimand, and retraining by filing grievances, he did
not have the right to challenge the same actions in his subsequently
filed EEO complaint. Therefore, the Commission affirms the dismissal
of allegation 2.
Under 29 C.F.R. �1614.301(a), the agency was required to inform
the appellant in its dismissal decision of his obligation to raise
discrimination in the grievance process and of the right to appeal the
final grievance decision to the Commission. The agency did not do so.
Accordingly, the Commission orders the agency to do so on remand.
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of allegation 2; VACATES the agency's dismissal of allegation 1;
and REMANDS allegation 1 to the agency for processing as ORDERED below.
ORDER
The agency is ORDERED to take the following actions:
Within 10 calendar days of the date this decision becomes final,
the agency shall inform the appellant of his obligation to raise
discrimination in the grievance process and of his right to appeal
the final grievance decision to the Commission when discrimination is
alleged.
Within 45 calendar days of the date this decision becomes final, the
agency shall conduct a supplemental investigation to determine when the
appellant first sought counseling about the matters raised in allegation 1
of his complaint. The investigator shall request that the appellant, the
co-worker, and the first counselor identified in the appellant's appeal
statement provide affidavits describing the dates and the content of
any and all EEO counselor contacts made by the appellant in October 1996.
Within 60 calendar days of the date this decision becomes final, the
agency shall either: (1) notify the appellant that it is accepting
allegation 1 for investigation; or (2) issue a new final decision
dismissing allegation 1 for untimely EEO counselor contact.
Within 60 calendar days of the date this decision becomes final, the
agency shall submit to the Compliance Officer referenced below copies of
the documents issued by the agency pursuant to paragraphs 1 and 3 above.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to
File A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil
action for enforcement or a civil action on the underlying complaint is
subject to the deadline stated in 42 U.S.C. �2000e-16� (Supp. V 1993).
If the appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file
a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the
date you filed your complaint with the agency, or your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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 (Z1092)
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:
February 11, 1999
Date Ronnie Blumenthal, Director
Office of Federal Operations