01a44935
04-27-2005
Alan T. Thurmond, Complainant, v. Frederick D. Gregory, Acting Administrator, National Aeronautics and Space Administration, Agency.
Alan T. Thurmond v. National Aeronautics and Space Administration
01A44935
April 27, 2005
.
Alan T. Thurmond,
Complainant,
v.
Frederick D. Gregory,
Acting Administrator,
National Aeronautics and Space Administration,
Agency.
Appeal No. 01A44935
Agency No. NCN-03-GSFC-A036
Hearing No. 120-2004-00112X
DECISION
Complainant filed this appeal with the Commission from a June 25,
2004 agency order implementing the May 20, 2004 decision of the EEOC
Administrative Judge which dismissed the complaint pursuant to 29
C.F.R. � 1614.107(a)(4) on the grounds that complainant had raised the
matter in a negotiated grievance procedure and for failure to contact an
EEO Counselor in a timely manner pursuant to 29 C.F.R. � 1614.107(a)(2).
Complainant, an African American civil engineer, alleged that he was
discriminated against on the basis of race (Black) when the agency
subjected him to racial harassment by denying him a promotion to a GS-14
Section Head.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an AJ and requested a hearing.
The AJ issued a decision without a hearing. In his decision, the AJ
noted that although complainant's complaint refers to harassment,
it is clear from the parties submissions on summary judgment �that
these theories were abandoned and that the sole claim herein is the
nonselection to the GS-14 [position].� The AJ found that complainant
failed to initiate EEO counseling until February 27, 2003, after being
notified of his nonselection on October 23, 2002, which was outside the
time limitations. The AJ found that complainant's
excuse that he was waiting to be �debriefed� by management on the
nonselection was not persuasive. Additionally, the AJ found that
complainant elected to raise the subject nonselection through the
grievance process prior to filing his EEO complaint.
The record reveals that complainant learned of his non-selection on
October 23, 2002. The record further reveals that the selectee, who
was White, was installed as the Section Head on November 22, 2002.
The record contains a copy of Article 16 of the collective bargaining
agreement (CBA) which covers grievance procedures between the agency and
the union. Section 16.07 of the CBA permits claims of discrimination
to be raised at Step 2 of the grievance process. The record reveals
that complainant filed a grievance on November 22, 2002, in which
complainant alleged, among other things, that Person A, the selecting
official, did not respond to complainant's request for feedback regarding
complainant's nonselection. The record reveals that on January 23, 2003,
complainant filed a Step 2 grievance in which he grieved, among other
things, his nonselection, stating that he was more qualified for the
Section Head position and that absent the unfair treatment/political
atmosphere, and "racial discrimination," the outcome would have been
different. Complainant's Step 2 grievance was denied on February 13,
2003, noting there was no indication of discrimination. On February
20, 2003, complainant filed a Step 3 grievance concerning, in part, his
nonselection and on March 18, 2003, there was a meeting with complainant
to discuss the Step 3 grievance. The record reveals that at the Step 3
grievance meeting, complainant stated that he would pursue resolution of
the Section Head position through the EEO process. The record contains
a copy of a March 28, 2003 Step 3 decision affirming the Step 2 denial
of the grievance. The Step 3 decision notes that complainant stated
that he was no longer pursuing his nonselection grievance and would be
pursuing the issue of the nonselection through the EEO process.
The record reveals that complainant met with Person A on January
16, 2003, regarding his nonselection. The record contains the EEO
Counselor's Report which reflects that complainant initiated contact on
February 27, 2003. The record further reveals that the EEO Counselor
provided complainant with a notice outlining complainant's rights and
responsibilities (notice) for which complainant signed on February
27, 2003. Item 7 of the notice informs complainant that if he were
a bargaining unit member, he could choose to file a grievance on the
issue of discrimination or to file a discrimination complaint but that he
could not do both. The record reveals that complainant's discrimination
complaint was filed on March 31, 2003.
On appeal, complainant asserts that the agency should be estopped from
dismissing the complaint because its managers and officers had knowledge
that complainant had filed a grievance under the collective bargaining
agreement and encouraged and permitted him to seek relief under the
EEO process. Complainant alleges that the agency provided complainant
with erroneous information about the negotiated grievance and the EEO
complaint processes. Complainant also asserts that the EEO Counselor had
an obligation to inform him that EEO regulations prohibited employees
from seeking Title VII remedies once negotiated grievance procedures
had been elected. Complainant also argues that the agency should also
be estopped from moving for a dismissal on
the procedural grounds of untimeliness where complainant engaged in EEO
counseling, the agency accepted the formal complaint, and complainant
participated in the investigation of the complaint, sought a hearing,
and completed pre-hearing procedures and discovery.
Having reviewed the entire record, the arguments on appeal, including
those not expressly addressed herein, the Commission finds that the
agency's dismissal of the complaint pursuant to 29 C.F.R. � 1614.107(a)(4)
was proper. EEOC Regulation 29 C.F.R. � 1614.301(a) states that an
aggrieved individual who files a grievance with an agency whose negotiated
bargaining agreement permits the acceptance of grievances which allege
discrimination may not thereafter file a complaint on the same matter,
irrespective of whether the agency has informed the individual of the need
to elect or of whether the grievance raised an issue of discrimination.
Here, because complainant filed a grievance on the issue of his
nonselection before the filing of his discrimination complaint on March
31, 2003, the complaint must be dismissed. We note that although the
record indicates that complainant withdrew the issue of his nonselection
at Step3 of the grievance process, the Commission has held that where a
previously filed grievance relates to the same matter as a subsequent EEO
complaint, cancellation of the grievance does not nullify the election.
See Boyd v. Housing and Urban Development, EEOC Request No. 05A10699
(January 3, 2003). The record indicates that although complainant was
provided with his election rights by the EEO Counselor, he had already
made his election. Other than complainant's assertions, there is no
evidence that complainant was misled by management. Having decided as
we have, the Commission need not address the issue of the timeliness of
EEO Counselor contact.
The agency's decision dismissing the complaint pursuant to 29 C.F.R. �
1614.107(a)(4) 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 27, 2005
__________________
Date