0520070930
11-06-2007
Dom Wadhwa, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Dom Wadhwa,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520070930
Appeal No. 0120072503
Agency No. 200J06102007101312
DENIAL
Complainant timely requested reconsideration of the decision in Dom
Wadhwa v. Department of Veterans Affairs, EEOC Appeal No. 0120072503
(August 30, 2007). EEOC Regulations provide that the Commission may,
in its discretion, grant a request to reconsider any previous Commission
decision where the requesting party demonstrates 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. See 29 C.F.R. �
1614.405(b).
The record reveals that on March 16, 2007, complainant filed an EEO
complaint alleging retaliation based on prior protected activity, when he
was issued a Notice of Directed Reassignment, effective March 4, 2007.
The agency issued a final decision dismissing his complaint pursuant
to 29 C.F.R. � 1614.107(a)(4). Specifically, the agency found that on
February 20, 2007, complainant filed a grievance regarding the directed
reassignment through a collective bargaining agreement, which permitted
allegations of discrimination. The prior decision affirmed the agency's
final decision.
In his Request, complainant states that the prior decision is clearly
erroneous. Complainant argues that he only filed his EEO complaint
in case the arbitrator found no jurisdiction over his grievance. Now
complainant states that because the agency has postponed and rescheduled
the grievance meetings on multiple occasions, he wishes to cancel the
negotiated grievance procedure and proceed with his EEO complaint.
After reconsidering the previous decision and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. � 1614.405(b), and it is the decision of the Commission to deny
the request. The agency may dismiss complaints involving the same matters
previously raised in a negotiated grievance procedure. See 29 C.F.R. �
1614.107(a)(4). Such dismissals are appropriate only when the agency is
subject to 5 U.S.C. � 7121(d), the collective bargaining agreement (CBA)
between the agency and union allows claims of discrimination to be raised,
and requires an election of forums. See 29 C.F.R. � 1614.301.
Here, complainant made an election to file a grievance on the matter.
Furthermore, he has not introduced any evidence that his grievance was
dismissed for lack of jurisdiction. Rather, complainant is dissatisfied
with the processing of his negotiated grievance. Since complainant
filed his formal EEO complaint on March 16, 2007, after his election to
pursue his claims through the agency's negotiated grievance procedure,
the prior decision was not clearly erroneous. The decision in EEOC Appeal
No. 0120072503 remains the Commission's final decision. There is no
further right of administrative appeal on the decision of the Commission
on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
11/6/07
Date
2
0520070930
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0520070930