01981367
09-09-1999
Frank J. Ferlita, Appellant, v. Andrew M. Cuomo, Secretary, Department of Housing and Urban) Development, Agency.
Frank J. Ferlita v. Department of Housing and Urban Development
01981367
September 9, 1999
Frank J. Ferlita, )
Appellant, )
)
v. ) Appeal No. 01981367
) Agency No. AT 97 23
Andrew M. Cuomo, )
Secretary, )
Department of Housing and Urban)
Development, )
Agency. )
)
DECISION
Upon review, we find that the agency properly dismissed appellant's
complaint, pursuant to 29 C.F.R. �1614.107(d), on the grounds that
appellant elected to proceed under a negotiated grievance procedure that
permits allegations of discrimination. Appellant filed a grievance
on July 2, 1997, under the agency's collective bargaining agreement
with regard to the failure of an agency official to take action
against another employee for sending a message about appellant that
appellant considered insulting and defamatory. On August 27, 1997,
appellant filed a formal EEO complaint with regard to the same issue.
The agency's collective bargaining agreement permits allegations of
discrimination to be raised via the negotiated grievance procedure.
The record indicates that appellant withdrew his grievance on September
3, 1997. However, appellant's withdrawal of his grievance does not negate
his prior election of the negotiated grievance procedure. The Commission
has held that the withdrawal of a grievance does not abrogate its effect
for purposes of an election. Bracket v. Department of the Air Force, EEOC
Request No. 05880427 (May 23, 1988); Marsh v. Department of the Treasury,
EEOC Request No. 05910393 (August 8, 1991). Thus, appellant's subsequent
decision to withdraw his grievance did not rescind the election he made
initially to pursue that avenue of redress. Accordingly, the final
agency decision dismissing appellant's complaint on the grounds that
appellant elected to pursue the matter through the negotiated grievance
process was proper and is hereby 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:
Sept. 9, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations