01A22501
10-08-2002
Sylvester Sinclair, Jr., Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Sylvester Sinclair, Jr. v. Department of Transportation
01A22501
October 8, 2002
.
Sylvester Sinclair, Jr.,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A22501
Agency No. 3-02-3014
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision (FAD) dated May 30, 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
complaint, complainant alleged that he was subjected to discrimination
on the bases of race, sex, religion, and reprisal for prior EEO activity
when<1>:
1. he has been hindered from fulfilling the obligations of his religious
beliefs. Facility Manager and the local union representative in an
ongoing barrage of hostility and harassment have gone so far as to devise
a schedule for his shifts that specifically and intentionally make it
impossible for him to attend his required lectures and meetings; and
2. National Air Traffic Controllers Association (NATCA) failed to
hold normal elections in order to promote a hostile work environment;
failure to properly represent Black employees on issues where employees
of other races were represented, and has held on to his grievance.
The agency dismissed claim (1) for raising the same matter in a
negotiated grievance procedure that permits allegations of discrimination.
Specifically, the agency found that complainant filed a formal grievance
concerning his religious beliefs, on May 7, 2001. The agency dismissed
claim
(2) for failure to state a claim. The agency determined that it had no
control over actions the union may take with respect to its members.
On appeal, complainant contends that no grievance was ever filed by the
union on his behalf. Further, complainant states �since I discovered
that the Management and the NATCA Rep were working together to ignore,
hinder and all together block my request and that it was obvious that
the NATCA Rep was not representing minority (Black) individual issues;
I decided to persue the matter on my own via the EEO process.�
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 election to proceed under the
negotiated grievance procedure is indicated by the filing of a timely
written grievance.
Regarding claim (1), the record in the instant case shows that complainant
filed a formal grievance on May 7, 2001, concerning his religious
beliefs. Months later, he filed his EEO complaint. The agency has also
provided a copy of the "Agreement between the National Air Controllers
Association AFL/CIO and the Federal Aviation Administration Department
of Transportation,� which states that an aggrieved employee"shall have
the option of utilizing this grievance procedure or any other procedure
available in law or regulation, but not both.'' Therefore, we find that
the agency properly dismissed the complaint on the grounds that it raised
the same matter in a negotiated grievance procedure.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
With respect to claim (2), complainant contends that he was discriminated
by the NATCA when it failed to hold normal elections in order to
promote a hostile work environment; failure to properly represent Black
employees on issues where employees of other races were represented;
and has held on to his grievance. The Commission has held that, except
in limited circumstances, the EEO process is not a mechanism to attack
internal union matters. See Bray v. Department of the Treasury, EEOC
Request No. 05940748 (March 23, 1995). Here, the record supports a
determination that the issue involved in the instant complaint addresses
actions of complainant's
union, and not those of the agency. Therefore, we find that the agency
properly dismissed claim (2) for failure to state a claim.
Accordingly, the agency's decision is hereby 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
October 8, 2002
__________________
Date
1The claims are herein identified as claims 1-2, for purposes of clarity,
although the
agency has designated them differently in its FAD.