01A10767_r
05-08-2001
Philip C. Capo v. Department of Transportation
01A10767
May 8, 2001
.
Philip C. Capo,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A10767
Agency No. DOT 3-99-3096
DECISION
Upon review, the Commission finds that the agency's decision dated
October 11, 2000, dismissing complainant's complaint for raising the same
matter in a grievance is proper pursuant to 29 C.F.R. � 1614.107(a)(4).
In his complaint, dated August 10, 1999, complainant alleged that since
August 25, 1997, he was denied his right to place certain religious
material in the employee breakroom, and as a result, he was subjected
to a disciplinary action. Complainant also indicated that a facility
memorandum, entitled �Religious Material in the Breakroom,� dated August
25, 1997, was discriminatory. As relief, complainant requested, inter
alia, the rescission of the August 25, 1997 memorandum and the removal of
any and all references to his violation of such memorandum. The record
indicates that complainant previously received a 5-day suspension
effective June 1, 1999, for failure to follow the instructions of a
superior, who had previously advised him that provocative material would
not be permitted in the breakroom. On June 15, 1999, complaint filed a
grievance with regard to the 5-day suspension, as well as the allegedly
discriminatory denial of his right to place certain religious material
in the workplace and the agency's policy therefor. The record contains
the collective bargaining agreement which clearly permits claims of
discrimination to be raised by an aggrieved employee during the negotiated
grievance procedure. Based on the foregoing, the Commission finds that
complainant elected to raise the alleged matters in a grievance, and he
was precluded from filing an EEO complaint, later, on the same matters.
Accordingly, the agency's decision is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
May 8, 2001
__________________
Date