01982329
04-29-1999
David L. Bretherick, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
David L. Bretherick v. Department of Transportation
01982329
April 29, 1999
David L. Bretherick, )
Appellant, )
) Appeal No. 01982329
v. ) Agency No. 4-97-1039
)
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
)
DECISION
On February 3, 1998, appellant filed a timely appeal with this Commission
from a January 5, 1998 final agency decision, dismissing his complaint
on the grounds that appellant raised the same matter in a negotiated
grievance procedure that permits allegations of discrimination.
EEOC Regulation 29 C.F.R. �1614.107(d) provides, in pertinent part, that
the agency shall dismiss a complaint where the complainant has raised the
matter in a negotiated grievance procedure that permits allegations of
discrimination and �1614.301 indicates that the complainant has elected
to pursue the non-EEO process.
EEOC Regulation 29 C.F.R. �1614.301(a) provides, in relevant part, 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
allegations of discrimination to be raised in a negotiated grievance
procedure, the employee wishing to file a complaint or a grievance on
a matter of alleged employment discrimination must elect to raise the
matter under either part 1614 or the grievance procedure, but not both.
Any such complaint filed after a grievance has been filed on the same
matter shall be dismissed without prejudice to the complainant's right
to proceed through the negotiated grievance procedure.
The record reveals that appellant filed a grievance in August 1996,
regarding the conduct and termination of his training. Thereafter,
appellant filed a complaint in October 1996 alleging that he was
discriminated against on the basis of sex (male) when a female trainee
received training in the form of simulated problems and was provided
more productive training hours while he was not afforded the same
opportunities. We find that appellant's complaint raised the same
matter that was the subject of his grievance. The record contains, and
we find, that the collective bargaining agreement permits allegations
of discrimination. Therefore, the agency's dismissal was proper.
Although appellant appears to be alleging that he was misled by the
EEO office regarding whether he should file a grievance or a complaint,
appellant himself states on appeal that the EEO Counselor informed him
that he could file a grievance and an EEO complaint concurrently but not
on the same matter.<1> Moreover, EEOC Regulation 29 C.F.R. �1614.301(a)
provides, in part, that an employee who files a grievance with an
agency whose grievance procedure permits the raising of allegations of
discrimination may not thereafter file a complaint on the same matter
under part 1614, irrespective of whether the agency has informed the
individual of the need to elect or of whether the grievance has raised
an issue of discrimination.
Accordingly, the agency's final decision dismissing the complaint is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
April 29, 1999
DATE Ronnie Blumenthal, Director
1The record reveals that appellant sought EEO counseling regarding the
training issue in July 1996.