05980694
11-20-1999
John Ternullo, Complainant, v. Richard Danzig, Agency No. 96-66604-009 Secretary, 97-66604-001 Department of the Navy, Agency.
John Ternullo, )
Complainant, )
)
v. ) Request No. 05980694
) Appeal No. 01972522
Richard Danzig, )
Agency No. 96-66604-009
Secretary, )
97-66604-001
Department of the Navy, )
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
On May 6, 1998, John Ternullo (hereinafter referred to as complainant)
initiated a request to the Equal Employment Opportunity Commission (the
Commission) to reconsider the decision in Ternullo v. Department of the
Navy, EEOC Appeal No. 01972522 (April 23, 1998). In 64 Fed.Reg. 37,644,
37,659 (1999) (to be codified and hereinafter referred to as 29
C.F.R. �1614.405(b)), the regulations provide that the Commissioners may,
in their discretion, reconsider any previous decision where the party
demonstrates that: (1) the previous decision involved clearly erroneous
interpretation of material fact or law; or (2) the decision will have
a substantial impact on the policies, practices or operation of the
agency. 29 C.F.R. �1614.405(b).<1>
Complainant contacted an EEO Counselor on April 11, 1996, claiming
disability discrimination when, among other things, he was continually
denied travel/training opportunities. Complainant received a notice of
final interview (the Notice) on June 24, 1996; and thereafter filed a
formal EEO complaint (Complaint 1).The agency issued a final agency
decision (FAD 1) which dismissed claims relative to travel/training
requests on the grounds that he did not provide evidence of training
opportunities which were denied within the time period occurring between
forty-five (45) days prior to April 11, 1996 and June 24, 1996.
In October 1996, complainant filed another formal EEO complaint (Complaint
2). Complainant claimed, in relevant part, that he was discriminated
against when he: (1) received a Decision to Suspend dated September 10,
1996 and; (2) received a Letter of Reprimand dated September 19, 1996.
The agency issued a FAD which dismissed the two claims on the grounds
that complainant had raised the issues through the negotiated grievance
procedure. The record shows that complainant filed grievances regarding
the suspension and the reprimand on September 18, 1996 and September 19,
1996 respectively. Complaints 1 and 2 were consolidated for processing.
The previous decision found that the agency properly dismissed
complainant's claims regarding the agency's repeated denials of requested
training because, even on appeal, complainant had submitted no evidence
which proved that any of the claimed denials were timely raised.
The previous decision also found that the record did not support the
agency's dismissal of the other two claims. While the previous decision
acknowledged that complainant filed grievances regarding the agency's
issuance of the suspension and the reprimand, it found that the record
did not demonstrate that the relevant collective bargaining agreement
permitted claims of illegal discrimination to be raised.
Travel/Training Opportunities (Complaint 1)
In his request for reconsideration, complainant asserts that the agency
failed to address his claims regarding the denial of travel requests
and also challenges the agency's dismissal for untimeliness.
First, we reject complainant's contention that the agency failed to
adequately address his claims of discriminatory denials of his requests
for travel. The record shows that the requests for travel complainant
refers to are those in connection with training requests. Moreover,
the term �travel/training� were used by both complainant and the agency
at points during the administrative process.
Regarding the timeliness issue, complainant reiterates that he identified
denials of training opportunities which were timely. Complainant
includes two typewritten formal requests for training dated March 6,
1996 and April 1, 1996. In the top right hand corner of each request
complainant has written March 7, 1996 and April 2, 1996 respectively as
the dates the requests were denied. The record shows that the training
requested occurred at the agency on the dates of March 18 - 20, 1996
and April 15, 1996. Complainant also includes a calendar in which he
has typed in the respective dates that he requested and was denied such
training. Complainant submits no other new evidence or argument.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with a Counselor within 45 days of the date
of the matter claimed to be discriminatory or, in the case of personnel
action, within 45 days of the effective date of the action. Initially,
we find that the previous decision properly determined that there was
no evidence in the previous appeal file of any travel/training requests
which were denied within the applicable time period. However, in his
request for reconsideration, complainant submits evidence of two denials
of training during the applicable time period. We note that the agency,
while challenging the credibility of the submitted calendar, provides
no rebuttal to the other evidence submitted by complainant regarding the
March 18-20 and the April 15, 1996 training. Complainant's request does
not meet the requirements for reconsideration. However, after considering
the information on its own motion, the Commission finds that the agency
should be required to accept claims concerning the denial of training
on March 7, 1996 and April 2, 1996.
Suspension and Reprimand (Complaint 2)
In its request for reconsideration, the agency provides a copy of the
agency's �FUSE Negotiated Grievance Procedure Agreement� which states
in pertinent part that �this procedure shall be the exclusive procedure
available to the parties and Unit employees. This procedure does not
cover matters listed in Appendix A. In matters for which statutory
appeal procedures exist, the employee shall elect whether to raise the
matter under statutory or negotiated procedures, but not both.� Though
the agency's request for reconsideration is denied because it does not
meet the requirements for reconsideration, the Commission reconsiders
the matter on its own motion.
In 64 Fed.Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.107(a)(4)), the regulations provide that
an agency shall dismiss a complaint where the complainant has raised
the matter in a negotiated grievance procedure that permits claims
of discrimination . Here, the agency provided sufficient evidence,
as indicated above, that the relevant negotiated grievance procedure
permitted claims either to be raised through the EEO process or through
the grievance procedure. The record shows that complainant raised
the two claims first through the grievance procedure.<2>
Therefore, after a review of the requests for reconsideration, the
previous decision and the entire record, the Commission finds that
the requests do not meet the criteria of 29 C.F.R. �1614.405(b), and
it is the decision of the Commission to deny the requests in part, and
to REVERSE, in part, the previous Commission's decision as it pertains
to the denial of travel/training opportunities; this matter is REMANDED
for further processing in accordance with the ORDER below. The portion
of the previous decision relating to the suspension and the reprimand is
REVERSED and the portion of the FAD relating to this issue is affirmed.
There is no further right of administrative appeal from the decision of
the Commission on this request for reconsideration.
ORDER (E1092)
The agency is ORDERED to process the remanded claims in accordance with
29 C.F.R. �1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the appellant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant request.
A copy of the agency's letter of acknowledgement to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to the
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. �1614.503 (a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior to or
following an administrative petition for enforcement. See 64 Fed. Reg.
37,644, 37,659-60 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �1614.503 (g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. �2000e-16(c)
(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed.Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. �1614.409).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. 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:
Nov. 20, 1999
______________ ______________________
DATE Frances M. Hart
Executive
Officer
Executive
Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
1 On November 9, 1999, revised regulations governing the
EEOC's federal sector complaint process went into effect.
These regulations apply to all Federal sector EEO complaints
pending at any stage in the administrative process.
Consequently, the Commission will apply the revised
regulations found at 64 Fed.Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations,
as amended, may also be found at the Commission's website
at WWW.EEOC.GOV.
2 We note that the agency failed to comply with 29 C.F.R. �1614.301(a),
which provides that when an agency dismisses an EEO complaint because the
complainant has filed a grievance on the same matter, it should advise
the complainant of his right to appeal the final grievance decision to
the Commission. However, here, complainant admits that he did not raise
discrimination issues in his grievance and as such, we find that the
agency properly dismissed these claims. The agency is reminded that it
must comply with 29 C.F.R. �1614.301(a) in the future.