01A22512_r
09-04-2002
Jack B. Griffin, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Jack B. Griffin v. Department of Agriculture
01A22512
September 4, 2002
.
Jack B. Griffin,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A22512
Agency No. 981030
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. �� 1614.107(a)(4), on the
grounds that complainant elected to file a grievance under the negotiated
grievance procedure that permits claims of discrimination, prior to
pursuing the instant complaint.
In his complaint, complainant alleged that he was subjected to
discrimination on the basis of race (African-American) when on August 3,
1998, he was not selected for two advertised GS-1863-9 TQC (Total Quality
Control) Food Inspector positions. The agency accepted the complaint and
conducted an investigation. Complainant requested a hearing. The agency
later filed a motion to dismiss the complaint before an Administrative
Judge (AJ) of the Commission, on the grounds that complainant did not
timely contact an EEO counselor and had elected to file a grievance under
the negotiated grievance procedure prior to the filing of the informal
EEO complaint and filed a motion to dismiss the complaint.
The AJ determined that complainant's EEO Counselor contact was not timely
raised. The AJ also found that complainant elected to file a grievance
through the negotiated grievance procedure prior to his pursuing the
EEO complaint process, and dismissed the complaint. The agency adopted
the AJ's decision.
The record discloses that complainant elected to file a grievance under
the negotiated grievance procedure that permits claims of discrimination,
prior to his contact with the EEO Counselor; and that the matter raised
in the grievance is the same as that raised in the instant complaint.
Accordingly, the agency's final action implementing the AJ's decision
is AFFIRMED.<1>
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
September 4, 2002
__________________
Date
1Because of our disposition of this case,
we find it unnecessary to address the alternative dismissal grounds of
untimely EEO Counselor contact.