01A22000_r
06-14-2002
Joseph S. D'Agosta, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Joseph S. D'Agosta v. Department of the Army
01A22000
June 14, 2002
.
Joseph S. D'Agosta,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A22000
Agency No. AUFSSPI0201C0020
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 23, 2002, 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 unlawful
employment discrimination on the bases of sex and age when:
1. on November 20, 2001, complainant received a Letter of Reprimand; and
2. on November 5, 2001, complainant received a lowered performance rating
(S2) for his most recent annual performance appraisal.
The agency dismissed complainant's complaint pursuant to 29 C.F.R. �
1614.107(a)(4) for raising the same matters that were brought in a
negotiated grievance procedure that permits claims of discrimination.
EEOC Regulation 29 C.F.R. � 1614.107(a)(4) provides that the agency
shall dismiss a complaint when the complainant has raised the matter in
a negotiated grievance procedure that permits claims of discrimination.
The record in this case does not contain a copy of the negotiated
grievance identified by the agency in its final decision, which
purportedly provides for the acceptance of grievances which allege
discrimination. In the absence of such evidence, the Commission is unable
to ascertain whether complainant filed a formal complaint on a matter that
was the subject of a grievance that permits claims of discrimination.
Accordingly, the agency's dismissal of the instant complaint is VACATED
and the matter is REMANDED to the agency for further processing in
accordance with this decision and the Order below.
ORDER
The agency is ORDERED to take the following action:
The agency shall supplement the record with a copy of the negotiated
grievance procedures, specifically including the relevant portion of the
agreement relating to whether grievants have the right to raise claims
of discriminatory treatment under the negotiated grievance procedure.
Within 30 calendar days of the date this decision becomes final, the
agency shall issue a new decision dismissing the complaint or issue a
letter to complainant accepting the complaint for investigation. The
agency shall submit a copy of the decision dismissing the complaint
or a copy of the letter to complainant accepting the complaint for
investigation, to the Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant 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. �� 1614.407 and 1614.408.
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(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. 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
June 14, 2002
__________________
Date