01983542_r
05-17-1999
Andrew N. Wallace, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Andrew N. Wallace, )
Appellant, )
)
v. ) Appeal No. 01983542
) Agency No. AMRSFO9803I0280
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
On April 8, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) dated March 18, 1998, pertaining to
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.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. �621 et seq. In his complaint, appellant alleged that he was
subjected to discrimination on the bases of race (African-American),
sex (male), age (over 40), and in reprisal for prior EEO activity when
appellant was not referred for Merit Promotion Announcements (MSA's)
97-40, 97-41, 97-44, 97-45, and 97-49 because appellant was not listed
as best qualified.
The agency dismissed the allegation pursuant to EEOC Regulation 29
C.F.R. �1614.107(d), for stating the same matter raised in a negotiated
grievance process that allows allegations of discrimination (Grievance
Number 97-14).
On appeal, appellant claims that Grievance Number 97-14 involved different
matters from the present case, namely, that appellant received two
different responses to his application for MSA 97-49, signed and dated on
the same date.<1> Appellant's EEO complaint, however, was based on not
being considered for a series of positions because appellant was ranked
low in �Criteria C - knowledge of work performed in the organization,�
although appellant worked at the agency for over nine years.
A copy of appellant's October 30, 1997 grievance letter is included
with the record, in which appellant grieves his �non-referral for MPA
97-49,� and requests that he be awarded points on his application in
consideration of his extensive experience with the agency. The record
also contains an undated letter explaining the �Avenues of Redress for
Army Employees or Applicants.� This document provides, in relevant
part, �If [appellant is] a member of a bargaining unit . . ., and if
the negotiated grievance procedure . . . does not exclude discrimination
issues. . .,� then appellant must chose between filing a grievance or an
EEO complaint, but not both. A copy of the negotiated grievance procedure
acknowledging that discrimination issues may be raised, however, is not
included with the record.
EEOC Regulation 29 C.F.R. �1614.107(d) provides that an agency may dismiss
a complaint, or portion thereof, where the complainant has raised the
matter in a negotiated grievance procedure that permits allegations
of discrimination. The Commission finds, however, that there is no
evidence of record to show whether the collective bargaining agreement
that governs appellant provided for allegations of discrimination to be
raised in the grievance process. The documents provided by the agency
merely outline the requirements for choosing a forum IF the collective
bargaining agreement does allow discrimination complaints. Clearly,
it is the burden of the agency to have evidence or proof to support
its final decision. See Marshall v. Department of the Navy, EEOC
Request No. 05910685 (September 6, 1991). Accordingly, the agency's
decision to dismiss appellant's complaint was improper. Further, the
Commission finds that even if the grievance process did allow complaints
of discrimination, appellant's grievance involved MPA 97-49, but did not
address appellant's non-referral for MPA 97-40, 97-41, 97-44, or 97-45.
Accordingly, the agency's decision is REVERSED, and appellant's complaint
is REMANDED to the agency for further processing in accordance with this
decision and applicable regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
of the appropriate rights within one hundred fifty (150) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action.
The report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. ��1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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 (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. 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. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. 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.
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:
May 17, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1One response stated that appellant
would receive further consideration in the ranking process, and
the other stated that appellant met the minimum requirements for
the position, but was not rated as highly qualified.