01994806
11-09-1999
Arnulfo Indrogo, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Arnulfo Indrogo, )
Complainant, )
)
v. ) Appeal No. 01994806
) Agency No. 99-2055
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dismissing his complaint of unlawful employment
discrimination brought under Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. � 791 et seq.<1> We accept the appeal
pursuant to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29
C.F.R. � 1614.405).
After unsuccessful EEO counseling, complainant filed a formal complaint
claiming that the agency failed to provide him with a reasonable
accommodation for his disability when it denied his request for a
change in tour of duty and/or a reassignment, and then charged him
with administrative leave instead of sick leave when he was absent as
a consequence of the denial of the requested accommodation(s).
In its FAD, the agency dismissed the complaint finding that it concerned
that same matter that complainant previously raised in the agency's
grievance process, which permitted claims of discrimination. The agency
rejected complainant's argument that making the same request again,
but for a different reason (as a reasonable accommodation for a claimed
disability, instead of a means of alleviating car pooling conflicts),
created a �new matter� each time the request was made and denied.
On appeal, complainant repeats the above argument, and further contends
that the denial of the grievance also constitutes a denial of a reasonable
accommodation, and that the agency's continued denials constitute an
on-going and continuing violation.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(4)) provides that an agency may dismiss a
complaint where the complainant has raised the same matter in a negotiated
grievance procedure that permits claims of discrimination.
In the instant case, the record shows that complainant filed a grievance
concerning the same matter as that raised in the instant complaint:
the agency's purported denial of his request for a change in tour of
duty and/or a reassignment. We agree with the agency that complainant
has made the same request, but for different reasons; and that therefore
the matter raised in the instant complaint is in essence a reiteration
of matters raised in a previously filed grievance. Moreover, we
concur with the agency's determination that the request and denial for
�administrative leave� instead of sick leave also arises from the same
matter�the agency's denial of his request for a change in tour of duty
and/or a reassignment.
Furthermore, the record confirms that under the terms of the agency's
union agreement, employees have to right to raise matters of alleged
discrimination under the statutory procedure or the negotiated grievance
procedure, but not both. Therefore, when complainant filed his grievance
concerning the agency's denial of his request for a change in tour of
duty and/or a reassignment, he made his election; and, although he could
have also raised his disability discrimination claim in the grievance
process under this election, he did not do so.<2> Accordingly, because
complainant elected to pursue the matter of the agency's denial of his
request for a change in tour of duty and/or a reassignment within the
grievance process, we find that the agency properly dismissed the instant
complaint pursuant to 29 C.F.R. � 1614.107(a)(4).
For the reasons set forth herein, we find that the instant complaint
was properly DISMISSED and we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On November 9, 1999, revised
regulations governing the EEOC's federal sector complaint process
went into effect. These regulations apply to all federal sector
EEO complaints pending at any stage in the administrative process.
Consequently, the Commission will apply the revised regulations found
at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2The record reflects that complainant filed his grievance in July 1998,
and then filed the instant EEO complaint approximately six months later,
in December 1998.