01a44698
10-22-2004
Abner Roberts, IV, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Abner Roberts v. Department of Veterans Affairs
01A44698
October 22, 2004
.
Abner Roberts, IV,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A44698
Agency No. 200H-0646-2004101884
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision, dated June 3, 2004, regarding 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.
The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
Complainant contacted the EEO office claiming his removal was based
on racial discrimination. Informal efforts to resolve complainant's
concerns were unsuccessful. On April 20, 2004, complainant filed a
formal complaint.
In its June 3, 2004 final decision, the agency determined that
complainant's complaint was comprised of two claims, that were identified
in the following fashion:
(1) On October 17, 2003, complainant's supervisor accused him of
reporting to work intoxicated.
(2) On October 18, 2004, a co-worker called complainant at his
residence and during the course of the conversation he is alleged to
have threatened her.
The agency dismissed complainant's complaint on the grounds that the
same matters raised therein were previously raised in a negotiated
grievance procedure. According to the agency, complainant filed a
Step 3 grievance regarding his removal. The agency noted that �while
[complainant] filed [his] EEO complaint on the actions which caused [his]
removal and not the removal action itself, the actions are inextricably
intertwined with the removal which is the basis for [the] grievance.�
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 claims 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 under either 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 this 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.
Here, the record contains a copy of a memorandum regarding �Third Step
Grievance Response.� The grievance concerns complainant's removal;
however, the memorandum addresses complainant's alleged misconduct,
including reporting to work under the influence of alcohol (claim 1)
and threatening a co-worker (claim 2). The memorandum is dated December
17, 2003, well before complainant filed his formal EEO complaint in
April 2004. Therefore, we agree with the agency's decision to dismiss
the complaint on the grounds that complainant elected the negotiated
grievance procedure.
Accordingly, the agency's decision was proper and is hereby 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
October 22, 2004
__________________
Date