01984071
05-19-1999
Frederic A. Myers, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation Agency.
Frederic A. Myers v. Department of Transportation
01984071
May 19, 1999
Frederic A. Myers, )
Appellant, )
)
v. )
) Appeal No. 01984071
Rodney E. Slater, ) Agency No. DOT-6-98-6041
Secretary, )
Department of Transportation )
Agency. )
______________________________)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision (FAD), dated March 25, 1998, which the agency issued pursuant
to EEOC Regulation 29 C.F.R. �1614.107(b). The Commission accepts the
appellant's appeal in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
Whether the agency properly dismissed appellant's complaint on the ground
that he previously had filed grievances on the same matter.
BACKGROUND
An individual was hired as an Assistant Manager for Automation Air Traffic
Division, Flight Service Data Processing Stations (FSDPS), in Fremont,
California.
On September 12, 1997 appellant filed a grievance contending that
job announcement OAK AIFSS-97-005, for an Assistant Manager for Automation
Air Traffic Division, had not complied with the procedures set forth in
the National Association of Air Traffic Specialists/Federal Aviation
Administration agreement. Appellant filed another grievance regarding
the same job announcement, on September 29, 1997, requesting information
on what would make him more competitive for future promotions. The
agency responded to appellant's requests, explaining that appellant
was in the group from which selection was made but that he was not
the best candidate. More experience and education would be helpful in
future considerations. The grievances were denied and appellant did
not pursue them any further.
The appellant sought EEO Counseling on December 22, 1997.
Informal efforts to resolve appellant's concerns were unsuccessful.
He subsequently filed an EEO complaint alleging discrimination based on
his race (white).
The agency issued a FAD wherein it dismissed appellant's allegation
pursuant to EEOC Regulation 29 C.F.R. �1614.107(d) on the grounds that
appellant had previously raised the matter in the negotiated grievance
procedure which permits allegations of discrimination.
On appeal, appellant argues that although she did file the grievances
she did not raise the issue of discrimination in either prior filing.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.301(a) states 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, a person wishing to file
a complaint or grievance on a matter of alleged employment discrimination
must elect to raise the matter under either part 1614 or the negotiated
grievance procedure, but not both. An aggrieved employee who files
a grievance with an agency whose negotiated agreement permits the
acceptance of grievances which allege discrimination may not thereafter
file a complaint on the same matter under this part 1614 irrespective
of whether the agency has informed the individual of the need to elect
or whether the grievance has raised an issue of discrimination.
The record shows that prior to the filing of the instant complaint
two grievances were filed on the same matter at issue in the instant
complaint, nonpromotion to the Assistant Manager position. The record
shows that the collective bargaining agreement permits allegations of
discrimination to be raised in the negotiated grievance process.
The Commission finds that the agency properly dismissed appellant's
complaint on the grounds that appellant previously raised the matter in
the negotiated grievance procedure.
CONCLUSION
Accordingly, the agency's decision dismissing appellant's complaint is
hereby AFFIRMED for the reasons set forth herein.
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. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
May 19, 1999 ____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations