01A44033_r
09-28-2004
Prabhakar Battu, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Prabhakar Battu v. Department of Veterans Affairs
01A44033
September 28, 2004
.
Prabhakar Battu,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A44033
Agency No. 200I-0509-2004101825
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision, dated May 6, 2004, regarding a formal complaint of
unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq. The Commission accepts the appeal in accordance with 29 C.F.R.
� 1614.405.
Complainant contacted the EEO office claiming that he suffered
discrimination based on sex, national origin, and reprisal. Informal
efforts to resolve complainant's concerns were unsuccessful. On April 26,
2004, complainant filed a formal complaint alleging he was discriminated
against when:
On March 1, 2004, he was given a letter detailing him to the Radiologist
position at the Upton Division, effective March 15, 2004, where he is
isolated and deprived of practicing essential modalities of Radiology.
Further, management made up a false matrix stating that he did not have
experience in CT and Fluro Radiology.
In its final decision dated May 6, 2004, the agency dismissed the
instant complaint on the grounds that complainant raised the matter in
a negotiated grievance procedure. Specifically, the agency determined
that on March 18, 2004, the union president filed a Step II grievance
on complainant's reassignment.
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 claims 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.
In the instant case, complainant argues on appeal that the union filed a
grievance regarding his reassignment, �[o]n its own initiative and for
its own purposes.� According to complainant, the union was concerned
that management's decision to reassign him violated union agreements.
In support of his contentions, complainant cites the language used in
the grievance and management's response. For example, in management's
decision on the grievance it acknowledged that the matter was �presented
by AFGE� and that the union's concerns related to the treatment of �all
radiologists.� Further, the decision informed union officials that �your
grievance is denied� (emphasis added). Complainant also argues that
the Step 2 grievance explicitly stated that �this is a union grievance
and not directly on behalf of a constituent.� Therefore, complainant
contends that he did not file a grievance and did not elect the grievance
process over the EEO process.
The Commission has previously held that an agency cannot deny a
complainant his statutory and regulatory right to file an EEO complaint
because the union exercised its right to file its own grievance
pursuant to the terms of a Collective Bargaining Agreement. See Hicks
v. Department of the Air Force, EEOC Appeal No. 01980342 (June 21, 2000)
(citing Rescio v. Department of Transportation, EEOC Appeal No. 01975288
(September 5, 1998). Here, the record contains a copy of the grievance
procedure, which defines a grievance as a complaint �by an employee(s)
or the Union . . . �(emphasis added). As noted above, the language
utilized in the grievance indicates that it was filed by the union,
independent of complainant. There is no evidence that complainant was
involved with the filing of the grievance. Therefore, we do not find
that complainant filed a grievance regarding his reassignment, prior to
the filing of his April 26, 2004 EEO complaint.
Accordingly, the agency's decision to dismiss complainant's complaint
was improper, and is hereby REVERSED. The complaint is REMANDED to the
agency for further processing in accordance with this decision and the
ORDER below.
ORDER (E0900)
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 complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment 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 (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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
September 28, 2004
__________________
Date