02980009
06-07-2000
Wesley Phillips, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Wesley Phillips, )
Complainant, )
)
v. ) Appeal No. 02980009
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
____________________________________)
DECISION
EEOC Regulation 29 C.F.R. � 1614.401(d) provides that a grievant may
appeal the final decision of the agency, the arbitrator or the Federal
Labor Relations Authority on a grievance when an issue of employment
discrimination was raised in a negotiated grievance procedure that
permits such issues to be raised.<1>
In the present case, complainant initiated the grievance process to
challenge the letter of admonishment given to him on September 19, 1997,
for failure to follow his manager's instructions.<2> During the grievance
process, complainant stated that his refusal to follow his manager's
instructions, which resulted in the letter of admonishment, stemmed from
racial discrimination. Complainant's grievance was processed through Step
III of the negotiated grievance procedure. At Step III, the grievance
was denied in a January 27, 1998 final decision. Complainant filed
the present appeal on February 26, 1998. Since the record reveals that
complainant raised an allegation of race discrimination in his grievance,
we find the Commission has the authority to review the agency's final
grievance decision on complainant's discrimination claim.
Upon review, we find that the agency's final decision was improper.
Specifically, we note that in its final grievance decision, the agency
determined only that the admonishment letter was warranted. The final
grievance decision, however, failed to specifically address complainant's
allegation of race discrimination.
The Commission has held that an agency must make findings on allegations
of discrimination in a grievance decision where the employee has alleged
employment discrimination. See Ricks v. Department of Health and Human
Services, EEOC Appeal No. 02960014 (June 16, 1997); Gamble v. General
Services Administration, EEOC Appeal No. 02880007 (July 11, 1988); Seremth
v. Department of Defense, EEOC Appeal No. 01831593 (February 7, 1985).
Furthermore, not only did the agency fail to address the merits of
complainant's discrimination claim in its final grievance decision,
but the record also lacks sufficient evidence upon which the Commission
could make its own findings.
Accordingly, the agency's final grievance decision is VACATED and this
matter is REMANDED.
ORDER
The agency is ORDERED to conduct a supplemental investigation, which
shall include the gathering of appropriate documentation relevant
to complainant's allegation of discrimination. Upon completion of the
investigation, the agency shall issue a new third-step grievance decision
which expressly addresses complainant's discrimination claim, unless
the matter is otherwise resolved. The supplemental investigation and
issuance of the final grievance decision must be completed within sixty
(60) calendar days of the date this decision becomes final.
A copy of the final grievance decision must be submitted to the Compliance
Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 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 64 Fed. Reg. 37,644,
37,659-60 (1999) (to be codified and hereinafter referred to as
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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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 WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 (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:
June 7, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date 1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all Federal sector EEO complaints, pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37, 644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.
2We note that the agency failed to provide a copy of complainant's Step
I, Step II, or Step III grievances, and it also failed to provide a copy
of the Step I or Step II grievance decisions.