MICHAEL G. CASEY, APPELLANT,
v.
JESSE BROWN, SECRETARY, DEPARTMENT OF VETERANS AFFAIRS, AGENCY.

Appeal No. 
01944605

August 09, 1995

DECISION

INTRODUCTION

Appellant filed an appeal with this Commission from a final decision of the agency concerning his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. The final agency decision is dated June 27, 1994. The appeal was received on July 13, 1994. Accordingly, the appeal is timely (see 29 C.F.R. § 1614.402(a)), and is accepted in accordance with EEOC Order No. 960, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed appellant's complaint on the grounds that appellant had previously elected to pursue the matter through the negotiated grievance procedure.

BACKGROUND

On December 13, 1993, the agency received appellant's formal complaint of discrimination based on reprisal (prior EEO complaints), alleging that he was non-selected for the position of a Senior Veterans Claims Examiner, GS-996-11/12, on November 5, 1993.

In its final decision dated June 27, 1994, the agency dismissed appellant's EEO complaint on the grounds that appellant had previously filed a grievance on the same matter. In its decision, the agency found that on November 8, 1993, appellant had filed a grievance on the matter raised in appellant's EEO complaint. Accordingly, the agency dismissed the complaint on the grounds that appellant had elected to pursue the matter through the negotiated grievance procedure. 29 C.F.R. §1614.107(d). This appeal followed.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. §1614.301(a) provides that "a person wishing to file a complaint or a 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". This subsection also provides that an election to proceed under 1614 is indicated by the "filing of a written complaint", while an election to proceed under a negotiated grievance procedure is indicated by the "filing of a timely written grievance".

Here, the agency dismissed appellant's formal EEO complaint filed on December 13, 1993, on the grounds that appellant had elected to pursue the matter through the negotiated grievance procedure, as indicated by appellant's previous filing of a written grievance on November 8, 1993.

The record shows that appellant had previously elected to pursue the matter through the negotiated grievance procedure. We find that appellant's prior filing of the written grievance constituted an election of forum. 29 C.F.R. § 1614.301(a). Although appellant asserts that the EEO Counselor did not inform him that a union grievance precludes an EEO complaint, we find such argument insufficient to preclude dismissal under Section 1614.107(d). See 29 C.F.R. § 1614.301(a).

After a review of the record in this case, the Commission finds that appellant first elected to pursue the matter through the negotiated grievance process and therefore, the final agency decision dismissing appellant's complaint pursuant to 29 C.F.R. §1614.107(d) was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this case if the appellant or the agency submits a written request containing arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law, regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive a timely request to reconsider filed by another party. Any argument in opposition to the request to reconsider or cross request to reconsider MUST be submitted to the Commission and to the requesting party WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request to reconsider. See 29 C.F.R. §1614.407. All requests and arguments must bear proof of postmark and 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 filed on the date it is received by the Commission.

Failure to file within the time period will result in dismissal of your request for reconsideration as untimely. If extenuating circumstances have prevented the timely filing of a request for reconsideration, a written statement setting forth the circumstances which caused the delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

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. 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 (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:

Ronnie Blumenthal
Director
Office of Federal Operations