David L. Bretherick, Appellant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionApr 29, 1999
01982329 (E.E.O.C. Apr. 29, 1999)

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.