0120103513
06-08-2012
Lincoln Jones, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Lincoln Jones,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120103513
Agency No. 2004-0512-2010102406
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated July 29, 2010, dismissing his 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Police Officer at the Agency's Perry Point facility in Maryland. On May 6, 2010, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the basis of race (African-American) when:
(1) on October 19, 2009, he received a Fully Successful performance appraisal that contained negative comments in reference to his performance of duties;
(2) on November 19, 2009, his supervisor instructed him to complete a Report of Survey while on duty, but did not require his coworkers to perform this task;
(3) on February 6, 2010, he was forced to work a 17 hour shift because management excused the day shift from reporting to work due to inclement weather; and
(4) on March 12, 2010, he received a Proposed Suspension, which upon final decision resulted in him receiving a Letter of Reprimand on April 8, 2010.
On July 29, 2010, the Agency dismissed complainant's claims pursuant to 29 C.F.R. � 1614.107(a) for filing the same matter in a negotiated grievance process. The Agency stated that Complainant filed a grievance through the union on April 23, 20101 and filed a formal complaint in May 2010, stating that the earlier date for the grievance meant he elected to proceed in the negotiated grievance process.
CONTENTIONS ON APPEAL
On appeal, Complainant stated that the grievance he filed on April 23 does not address claims (1) - (3) at all and only addresses an aspect of claim (4). He asked that this Commission reverse the final agency decision.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(4) provides that an agency may dismiss a complaint where the complainant has raised the matter in a negotiated grievance procedure that permits claims of discrimination. In the instant case, the record shows that, on April 23, 2010, complainant filed a grievance regarding proposed and then final discipline for him failing to work the full 17 hours required on February 6, 2010. Complainant filed a formal complaint concerning the instant matters on May 6, 2010. Additionally, the record shows that under the terms of the agency's union agreement, employees have the right to raise matters of alleged discrimination under the statutory procedure or the negotiated grievance procedure, but not both. As the record indicates that complainant elected to pursue the matter within the grievance procedure, we find that the agency properly dismissed claim (4) pursuant to 29 C.F.R. � 1614.107(a)(4). However, we conclude further that Complainant's April 23 grievance did not address the actions alleged in claims (1) through (3), so they remain viable claims.
CONCLUSION
Accordingly, we AFFIRM in part the final agency decision dismissing (4). However, we REVERSE in part the final agency decision dismissing (1) through (3) and REMAND those matters to the Agency for further processing consistent with the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant 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 Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant 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 (K0610)
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 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant 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. �� 1614.407 and 1614.408. 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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
with the Court 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
06/08/2012
__________________
Date
1 The record contains a grievance dated April 23, 2010 regarding a proposed suspension and then a written reprimand based partially on Complainant leaving early after he was instructed, due to inclement weather, to work 17 hours starting February 6, 2010.
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0120103513
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120103513