01A43336_r
11-24-2004
James Wade, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Finance and Accounting Service), Agency.
James Wade v. Department of Defense (Defense Finance and Accounting
Service)
01A43336
November 24, 2004
.
James Wade,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Finance and Accounting Service),
Agency.
Appeal No. 01A43336
Agency No. DFAS-IN-CP-04-018
DECISION
Complainant filed an appeal with this Commission from a March 9,
2004 agency decision, dismissing his 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 that permits allegations of discrimination.
The agency also dismissed the complaint pursuant to 29 C.F.R. �
1614.107(a)(5) on the alternative grounds of mootness.
In his December 2, 2003 complaint, complainant alleged that he
was subjected to discrimination on the bases of race (Black), color
(black), sex (male), and age (58) when: (1) on April 24, 2003, he was
issued a Notice of Unacceptable Performance and placed on a performance
improvement plan (PIP); (2) on September 17, 2003, complainant received
an unsatisfactory performance appraisal for the rating period September
20, 2002, to August 9, 2003; and (3) on September 29, 2003, complainant
was given a Notice of Proposed Removal.
In its decision dismissing the complaint, the agency noted that a union
grievance was filed regarding the PIP on April 24, 2003, and that the
agency had issued complainant a new performance appraisal for the period
to complainant. Regarding its dismissal on mootness grounds, the agency
stated that the agency had rescinded the Notices of Proposed Removal and
Unacceptable Performance and had issued a new performance appraisal for
the period September 20, 2002 to August 9, 2003.
On appeal, complainant asserts that he did not join the grievance filed
by the union on behalf of a group of employees but instead chose the
EEO process.
EEOC Regulation 29 C.F.R. � 1614.301(a) states that when a person is
employed by an agency subject to 5 U.S.C. � 7121(d) and is covered by a
collective bargaining agreement that permits allegations of discrimination
to be raised in a negotiated grievance procedure, a person wishing to file
a complaint or grievance on a matter of alleged employment discrimination
must elect to raise the matter either under Part 1614 or the negotiated
grievance procedure, but not both. An aggrieved employee who files
a grievance with an agency whose negotiated agreement permits the
acceptance of grievances which allege discrimination may not thereafter
file a complaint on the same matter under Part 1614, irrespective of
whether the agency has informed the individual of the need to elect or
whether the grievance has raised an issue of discrimination.
The record contains a copy of Section 5 of the collective bargaining
agreement which reveals that allegations of discrimination may be raised
in the grievance process. Also contained in the record is a copy of
a union grievance, dated September 11, 2003, which reflects that Local
1960 filed a grievance on October 10, 2003, for bargaining unit employees
from Vendor Pay in Pensacola. Local 1960 grieved the manner and method
used by the agency in issuing and implementing the PIPs. As part of
the corrective action sought, the union requested that all PIPs issued
to bargaining unit employees of Vendor Pay in Pensacola be removed and
that all ratings that occurred as a result of PIPs be changed to fully
satisfactory ratings. Also contained in the record is a Formal Grievance
Decision, dated October 10, 2003, from the agency to the unit chair of
Local 1960. The Grievance Decision, which denied the grievance, noted
that its decision was in response to Local 1960's grievance regarding
bargaining unit employees from Vendor Pay in Pensacola being placed on
PIPs. There are no other grievance decisions in the record.
The record contains a February 23, 2004 Memorandum from the agency's
Director of Navy Vendor Pay Support to complainant. Therein, the Director
stated that he was rescinding the Notices of Unacceptable Performance
and Proposed Removal issued to complainant and stated that complainant
would not be removed or reassigned. The Director informed complainant
that he would be issued a new performance appraisal for the rating cycle
that ended April 30, 2003, and his performance would be rated as fully
successful for that cycle.
The record contains complainant's performance appraisal for the period
September 20, 2002, through August 9, 2003. The appraisal, dated August
2003, rated complainant's performance as unsatisfactory. Also contained
in the record is a new performance appraisal, dated February 2004,
which evaluated complainant's performance as fully successful for the
period September 20, 2002, through April 30, 2003.
We find that the agency's dismissal of claims (1) and (2) pursuant to 29
C.F.R. � 1614.107(a)(4) was proper because complainant elected to pursue
his allegation of discrimination by pursuing the negotiated grievance
process before filing a formal complaint. The fact that the grievance
was filed by the local union on behalf of bargaining unit employees and
not by complainant himself does not change the outcome of this decision
that an election was made to pursue the grievance process. Claim (2)
is inextricably linked to the grievance. Claim (3) is properly dismissed
pursuant to 29 C.F.R. � 1614.107(a)(5) because it concerns a proposal to
take a personnel action. There is no evidence or claim that complainant
was removed from his position.
Accordingly, the agency's decision dismissing the complaint 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
November 24, 2004
__________________
Date