Wesley Phillips, Complainant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionJun 7, 2000
02980009 (E.E.O.C. Jun. 7, 2000)

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.