01A04557
04-05-2001
Robert D. Taylor, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Robert D. Taylor v. Department of Transportation
01A04557
April 5, 2001
.
Robert D. Taylor,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A04557
Agency No. 4-00-4049
DECISION
Upon review, the Commission finds that the complaint was properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(4), based on complainant's
filing of a grievance regarding the same matter as his EEO complaint.
The record shows that on November 23, 1999, complainant was allegedly
informed that his position as an Airworthiness Safety Program Manager
was eliminated. By letter dated December 1, 1999, complainant asked the
Manager, Cleveland FSDO to explain the factors involved in the elimination
of his position. Complainant advised the manager that he was filing a
grievance pursuant to article 5, section 7 of the collective bargaining
agreement.<1> By letter dated December 10, 1999, the manager informed
complainant that his grievance was denied because the assignment of work,
including reassignment of employees, was a reserved management right.
By grievance filed on December 2, 1999, complainant claimed that
management had failed to allow him to have union representation during a
November 24, 1999 meeting. By letter dated December 6, 1999, the agency
denied this grievance.
On December 19, 1999, complainant sought EEO counseling claiming that he
had been discriminated against when his position of Safety Program Manager
was eliminated. On March 27, 2000, complainant was issued the notice of
the right to file a formal complaint. Subsequently, complainant filed a
complaint claiming that he had been discriminated against on the bases
of race, sex, age, and in reprisal for prior protected activity when
in November 1999, his position of Airworthiness Safety Program Manager
was eliminated.
The agency issued a final decision dismissing the complaint after
finding that complainant had raised this matter in a negotiated grievance
procedure.
On appeal, complainant contends that the manager assigned union grievance
numbers to his letters to deny him access to the EEO complaint process.
A review of the record shows that complainant's argument is without merit.
Complainant filed a grievance prior to filing the instant complaint,
which addressed the same matter raised in the EEO complaint. Accordingly,
the agency's final decision dismissing the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 5, 2001
__________________
Date
1 The record shows that article 5, section 4 of the collective bargaining
agreement allows an employee to pursue discrimination claims through
the grievance process or the EEO complaint process, but not both.