01993952_r
03-27-2002
Monte L. Engler, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Monte L. Engler v. Department of Transportation
01993952
March 27, 2002
.
Monte L. Engler,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01993952
Agency No. 4994042
DECISION
Complainant filed an appeal with this Commission from a decision of the
agency pertaining to 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. The Commission accepts the appeal
in accordance with 29 C.F.R. � 1614.405.
Believing that he was the victim of discrimination based on race, national
origin and in reprisal for prior protected EEO activity, complainant
contacted the EEO office. Specifically, complainant claimed that he
was discriminated against when:
on December 2, 1998, he was issued a Letter of Warning;
on September 2, 1998, he was issued a letter proposing to suspend him;
(3) on September 29, 1997, he was unjustly notified that he was not
timely in reporting to work;
(4)(a) on August 14, 1997, he was issued a memorandum which stated that
his performance was unsatisfactory;
(4)(b) on August 24, 1997, he was unjustly notified that his use of
leave was unsatisfactory;
(4)(c) on or about October 2, 1998, he was unjustly notified in writing
that his behavior was unprofessional;
(4)(d) he was not promoted in a timely fashion;
(4)(e) he was subjected to negligent training; and
(4)(f) he was subjected to various acts of alleged harassment and a
hostile work environment.
On March 11, 1999, complainant filed a formal complaint that addressed
the matters for which he underwent EEO counseling, set forth above.
On April 12, 1999, the agency dismissed claim (1) finding that this claim
was the same as the one raised in a negotiated grievance proceeding.
The agency dismissed claims (2) and (4)(a) - (f) on the grounds that
they stated the same claims that were previously decided by the agency.
Finally, the agency dismissed claim (3) on the grounds that it was
untimely filed. Specifically, the agency determined that with regard
to this claim, complainant had received a Notice of Right to File a
Discrimination Complaint on December 19, 1997, but that he did not file
a formal complaint until March 11, 1999.
Claim (1)
EEOC Regulation 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
grievance procedure, but not both. 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 this 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.
Regarding claim (1), the record reveals that complainant filed a
grievance (Grievance No. (PA) GL-98-078-CHI-03) on December 2, 1998,
alleging that he had been issued a Letter of Warning on December 2, 1998.
The record in this case contains a copy of the relevant portion of the
agency collective bargaining agreement, indicating that employees can
pursue discrimination matters through the grievance procedure or through
the EEO complaint process, but not both. Thereafter, complainant filed a
formal EEO complaint on January 3, 2001, alleging that he had been issued
a Letter of Warning on December 2, 1998. We find that the grievance
states the same claim as raised in claim (1). The agency decision to
dismiss claim (1) is AFFIRMED.
Claim (2) and Claims (4)(a) - (f)
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that is
pending before or has been decided by the agency or Commission.
Regarding claim (2), the record shows that complainant had previously
raised the same issue in an earlier complaint, Agency No. 4-99-4020.
The record further shows that complainant had previously raised the
same issues, claims (4)(a), (b), (d), and (f) in an earlier complaint,
Agency No. 4-98-4103. However, regarding claims (4)(c) and 4(e), the
agency provided insufficient evidence to show complainant raised the same
issues in an earlier complaint. Clearly, it is the duty of the agency to
have the evidence or proof to support its final decision. See Marshall
v. Department of the Navy, EEOC Request No. 05910685 (September 6, 1999).
Therefore, we find that the agency improperly dismissed claims (4)(c) and
(4)(e)on the grounds that they state the same claims previously decided
by the agency. The agency decision to dismiss claims (4)(c) and (4)(e)
is REVERSED. Claims (4)(c) and (4)(e) are REMANDED to the agency for
further processing in accordance with the ORDER below. The agency's
dismissal of claims (2), (4)(a), (b), (d), and (f) is AFFIRMED.
Claim (3)
The agency dismissed claim (3) on the grounds that complainant filed an
untimely complaint regarding the matter raised therein. The Commission
determines that this claim is properly analyzed in terms of whether it
states the same claim that was raised in a prior complaint. In claim 3,
complainant claimed that on September 29, 1997, he was improperly notified
that he was not timely reporting to work. The record reflects that
this same matter was raised in a prior complaint filed by complainant
(Complaint No. 4-98-4103) and identified as Claim No. (2)(b) in that
complaint.
Accordingly, the agency's final decision dismissing claim (3) is AFFIRMED
for the reasons set forth herein.
ORDER (E0900)
The agency is ordered to process the remanded claims (claims (4)(c)
and (4)(e)) in accordance with 29 C.F.R. � 1614.108. The agency shall
acknowledge to the complainant that it has received the remanded claims
within thirty (30) calendar days of the date this decision becomes final.
The agency shall issue to complainant a copy of the investigative file and
also shall notify complainant of the appropriate rights within one hundred
fifty (150) calendar days of the date this decision becomes final, unless
the matter is otherwise resolved prior to that time. If the complainant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
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.
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 (T0900)
This decision affirms the agency's final decision/action 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 within ninety (90) calendar
days from the date that you receive this decision 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. 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 (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 27, 2002
__________________
Date