0120120268
09-28-2012
Dennis A. Rode, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Dennis A. Rode,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120120268
Agency No. ARDETROIT10DEC05331
DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated January 26, 2011, dismissing 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Lead Police Officer at the Agency's Joint Systems Manufacturing Center in Lima, Ohio. The record reveals that in February 2010, the Agency proposed to remove Complainant due to his inability to comply with the full physical requirements of his job. In March 2010, Complainant requested a reasonable accommodation in that he not be required to perform all of the physical requirements under the Physical Ability Test (PAT) he was ordered to take for his job. In July 2010, as a result of finding Complainant was not fit for duty based on his inability to perform regular periodic running, paced walking, and an inability to perform pushups, the Agency determined Complainant should be removed from the Police Officer job series. As an alternative to removal, the Agency offered Complainant a position as a Public Safety Dispatcher in the Detroit Arsenal in Warren, Michigan. Complainant declined the offered position and the Agency upheld his removal effective October 18, 2010.
On January 13, 2011, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of disability (osteoarthritis in knees) when: management responded to Complainant's request for reasonable accommodation by offering him a Public Safety Dispatcher position located in Warren, Michigan.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(4), for electing to raise the same matter in the negotiated grievance process. The Agency stated that Complainant submitted an election to proceed on the matter at issue under a negotiated grievance procedure.
On appeal, Complainant argues that the grievance he filed was for wrongful termination. In contrast, he claims that the EEO complaint he filed concerned his claim of denial of reasonable accommodation.
In response to Complainant's appeal, the Agency notes that Complainant was put on notice that he could address his allegations of unlawful discrimination by way of the Agency's negotiated grievance procedure or the EEO regulatory procedure. The Agency states that Complainant elected to proceed via the grievance procedure. The Agency finds it properly dismissed Complainant's complaint.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(4) provides that an agency shall dismiss a complaint where a complainant has already raised the matter in a negotiated grievance procedure that permits allegations of discrimination. The record in this case contains a copy of the negotiated agreement between Complainant's union and the Agency. Article 41, Section B and Section C of that collective bargaining agreement provides, in pertinent part, that an employee has the option of filing a complaint of discrimination under the negotiated grievance procedure or under the Agency's EEO complaint procedure, but not both.
A review of the record indicates that on November 1, 2010, a step 3 grievance was filed on Complainant's behalf under the collective bargaining agreement regarding "the unwarranted and improper removal of [Complainant] from Federal Service based upon a misinterpretation and misapplication of AR 190-56, and based on a faulty Physical Ability Test (PAT), which does not determine or demonstrate the ability to perform the essential functions of [Complainant's] position." This grievance was filed prior to the filing of Complainant's January 13, 2011 EEO complaint. Moreover, we note the record contains a January 20, 2011 electronic mail message from Complainant to the EEO Officer stating that he is "proceeding with the Grievance and Arbitration. AFGE Local 1658 has invoked Arbitration on the Grievance over my Removal from Federal Service." It is undisputed that Complainant is a member of the bargaining unit covered by the negotiated agreement between the Agency and the American Federation of Government Employees (AFGE), and that the grievance procedure under that agreement provides for the adjudication of allegations of discrimination.
On appeal, Complainant argues that the grievance addresses Complainant's removal from the Agency, while the instant EEO complaint addresses a separate issue: the Agency's failure to provide him reasonable accommodation when he was unable to complete the Physical Ability Test (PAT) mandated by a Revision to AR 190-56. The Commission rejects this argument, and determines that Complainant has unsuccessfully attempted to distinguish between the two matters, when they are in essence addressing the same issue: the denial of accommodation which led to Complainant's removal from the Agency. We find Complainant elected to raise the denial of reasonable accommodation claim via the negotiated grievance procedure. Thus, the Agency's decision to dismiss the formal complaint, pursuant to 29 C.F.R � 1614.107(a)(4), was proper.
CONCLUSION
Accordingly, the Agency's final decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
September 28, 2012
__________________
Date
2
01-2012-0268
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120268