01A20684_r
04-25-2002
Sanjeev Kalani, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Sanjeev Kalani v. Department of Transportation
01A20684
April 25, 2002
.
Sanjeev Kalani,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A20684
Agency No. DOT-1-01-1086
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision dated October 17, 2001, dismissing his 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.
In his EEO complaint, filed on September 7, 2001, complainant alleged
that he was subjected to discrimination on the bases of national origin
and race when the agency failed to select him for reassignment to the
Atlantic City Air Traffic Control Tower.
The agency dismissed complainant's complaint, pursuant to 29 C.F.R. �
1614.107(a)(4). Specifically, the agency determined that complainant
elected to raise the same matter in a negotiated grievance that permits
claims of discrimination.
On appeal, complainant contends that his formal grievance was filed only
on the matter of the agency's failure to release him from his duties at
the Philadelphia Control Tower, which he maintains is a distinct issue
from his EEO claim that the agency unlawfully failed to reassign him to
the Atlantic City Control Tower.
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.
The Commission finds that the agency properly dismissed complainant's
complaint. The record reveals that the negotiated grievance agreement
provided that claims of discrimination may be filed as a grievance or EEO
claim, but not both. The record further reveals that in his grievance
filed June 26, 2001, complainant challenged the agency's refusal to
release him from the Philadelphia Control Tower. Complainant further
states in his grievance that the nature of his grievance is that �On 2
April 2001, [complainant] submitted his request through the NATCA facility
for transfer to the ACY [Atlantic City] Tower.� Moreover, in the response
denying complainant's grievance dated July 16, 2001, complainant's
grievance is characterized as �concerning transfer requests for mutual
reassignments,� including a request for reassignment to the Atlantic City
Tower. In his EEO complaint, complainant likewise challenged the agency's
failure to transfer him to the Atlantic City Tower. Consequently,
we find that complainant elected to pursue the same matter raised
in the instant complaint through the grievance process. Accordingly,
the agency's dismissal of complainant's complaint is AFFIRMED.
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 (S0900)
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. 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 (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
_____April 25, 2002_____________
Date