01A21964_r
06-07-2002
Carl E. Sanchez, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Carl E. Sanchez v. Department of Veterans Affairs
01A21964
June 7, 2002
.
Carl E. Sanchez,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A21964
Agency No. 98-4980
DECISION
Complainant filed an appeal with this Commission from an agency
decision, issued on February 11, 2002, pertaining to his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal
in accordance with 29 C.F.R. � 1614.405.
Complainant contacted the EEO office claiming he was discriminated against
when he was not selected for the position of Legal Instruments Examiner,
GS-963-5 (trainee for 6/7/8/9), Vacancy Announcement No. 339-98-34.
Informal efforts to resolve complainant's concerns were unsuccessful.
Subsequently, on December 3, 1998, complainant filed a formal complaint
based on age and disability.
On February 17, 1999, the agency dismissed the complaint on the grounds
that complainant already raised the matter under a negotiated grievance
procedure that permits allegations of discrimination. Specifically,
the agency found that complainant filed a first step union grievance,
regarding his non-selection for the Legal Instruments Examiner position,
on October 20, 1998. Further, the agency found that a settlement
agreement resolving the grievance was entered on November 27, 1998. The
agency determined that it was not until after these events, on December 3,
1998, that complainant filed a formal EEO complaint. Complainant filed
an appeal from the agency's decision.
On appeal, the Commission determined that "complainant clearly pursued
this claim through the grievance process", but noted that "agency
failed to provide a copy of relevant collective bargaining agreement
provisions indicating that an election of forums was necessary."
Sanchez v. Department of Veterans Affairs, EEOC Appeal No. 01A04617
(October 30, 2001). The Commission concluded that without a copy of
the agreement, it was unable to find the agency's dismissal was proper.
See id. The agency's decision was reversed and the complaint was remanded
to the agency for further processing.
Thereafter, on February 11, 2002, the agency issued another decision
which is the subject of the instant appeal. In its February 2002
decision, the agency again dismissed the complaint pursuant to 29
C.F.R. � 1614.107(a)(4). The agency determined that the Commission's
order "does not preclude us from issuing another decision dismissing
the complaint, when evidence is provided..." regarding the collective
bargaining agreement.
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 election to proceed under the
negotiated grievance procedure is indicated by the filing of a timely
written grievance.
The record in the instant case shows that complainant filed a first step
grievance on October 20, 1998, regarding the Legal Instruments Examiner
position. Months later, he filed his EEO complaint. The agency has
also provided a copy of the "Master Agreement between the Department of
Veterans Affairs and the American Federation of Government Employees",
which states that claims of discrimination "may be filed either under
the statutory procedure or the negotiated grievance procedure but not
both...." Therefore, we find that the agency properly dismissed the
complaint on the grounds that it raised the same matter in a negotiated
grievance procedure.
Accordingly, the agency's decision is hereby AFFIRMED.
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 (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
June 7, 2002
__________________
Date