01A42461_r
01-10-2005
Jim Isadore, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, (Bureau of Reclamation), Agency.
Jim Isadore v. Department of the Interior
01A42461
January 10, 2005
.
Jim Isadore,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
(Bureau of Reclamation),
Agency.
Appeal No. 01A42461
Agency No. WBR-03-004
Hearing No. 380-2003-08129X
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final order concerning his equal employment (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), 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.
The record reveals that during the relevant time, complainant was employed
as a Supervisor 1, Warehouse, XE-6907-00, at the agency's Grande Coulee
Power Office, Pacific Northwest Region in Boise, Idaho. Complainant
sought EEO counseling and subsequently filed a formal complaint on
October 28, 2002, alleging he was discriminated against on the bases
of national origin (Hispanic), age (DOB 4/3/48) and in reprisal for
prior EEO activity. Complainant claimed that the agency reclassified
his position; removed him from the bargaining unit on or about 1995;
and as a result, he suffered from an adverse pay conversion action.
According to complainant, he was paid less money than his peers and the
wage surveys, conducted pursuant to the Prevailing Rate Systems Act,
were done improperly.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ).
On November 18, 2003, the agency responded to the AJ's Notice of Intent
to Issue a Decision Without a Hearing. In its response, the agency
argued that the Commission lacks jurisdiction to hear complainant's case.
Specifically, the agency argued that the bargaining unit was established
through a promulgated procedure approved by the Office of Personnel
Management (OPM); and that any deficiencies or irregularities related
to the bargaining units, as well as how pay is attributed to units, are
remedied through appeal under the Prevailing Rate System Act of 1972.<1>
On November 24, 2003, the AJ issued a decision without a hearing.
Therein, the AJ dismissed complainant's complaint for failure to state a
claim pursuant to 29 C.F.R. � 1614.107(a)(1). The AJ determined that the
matter raised in the instant complaint was not within the jurisdiction
of the Commission. The AJ further stated that any claims relating to
pay issues governed by bargaining units are remedied through appeal
under the Prevailing Rate Systems Act of 1972.
The agency implemented the AJ's decision in its final order.
After a careful review of the record, the Commission determines that
the matters raised in the instant
complaint are beyond the jurisdiction of the Commission. A review of
the record reflects that the matters raised in the instant complaint
relate to the following issues: complainant's removal from a bargaining
unit in 1995; reclassification of his position; and a purported adverse
pay conversion. These issues are properly pursued through the appeals
process under the Prevailing Rate Systems Act of 1972. See Anderson
v. Hodel, 899 F.2d 766 (9th Cir. 1990).
Accordingly, the agency's final action implementing the AJ's dismissal
of the instant complaint was proper and 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
January 10, 2005
__________________
Date
1 The Prevailing Rate Systems Act of 1972 is
codified at 5 U.S.C. � 5341 - 5349, and is commonly referred to as the
prevailing rate statute. Section 5341 provides that the general policy
of the prevailing rate statute is that the rates of pay of prevailing
rate Federal employees are to be fixed and adjusted from time to time,
as nearly as consistent with the public interest, in accordance with the
prevailing rates paid for comparable work in the local area by private
sector employees. Under Section 5342, the OPM is responsible for defining
geographical wage areas and for designating a lead agency for each area.
Lead agencies are responsible for conducting wage surveys, analyzing wage
survey data, and developing and establishing appropriate wage schedules
and rates for prevailing rate employees.