01993379
07-27-2000
Bennie L. Thomas III, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Bennie L. Thomas III v. Department of the Treasury
01993379
July 27, 2000
Bennie L. Thomas III, )
Complainant, )
)
v. ) Appeal No. 01993379
) Agency No. 99-4124
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
____________________________________)
DECISION
On March 18, 1999, complainant filed a timely appeal with the Commission
from a final agency decision (FAD) pertaining to his complaint of
unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> The
Commission accepts the appeal in accordance with 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
In his complaint, complainant claims that he was subjected to
discrimination on the basis of race when he received an unfair annual
performance appraisal for the period of October 1, 1997 to September
30, 1998. In its FAD, the agency dismissed the complaint finding that it
was the same matter which complainant raised in his June 1998 grievance,
which concerned the breach of a Settlement Agreement (SA) executed to
resolve complainant's January 1996 grievance regarding a non-promotion.
Specifically, the FAD indicated that complainant's June 1998 grievance
challenged that provision in the grievance SA addressing his performance
appraisal for the period of January 1998 to April 1998, so that it was
the �same matter� as the EEO complaint claiming discrimination regarding
the October 1997 to September 1998 annual performance appraisal.
The agency therefore determined that complainant elected to use
the grievance process instead of the EEO process, and dismissed the
instant complaint. The agency further found complainant's EEO claim
was inextricably intertwined with the provisions of the grievance SA,
and that using the EEO process in this manner constituted a collateral
attack on the grievance SA.
On appeal, complainant argues that the grievance SA and his June
1998 grievance are separate from his EEO complaint. Specifically,
complainant argues that the grievance SA and the June 1998 grievance
concern a January 1996 non-promotion; and that the instant EEO complaint
concerns his October 1997 to September 1998 annual performance appraisal.
The agency did not submit a response to the appeal.
Our review of the grievance SA discloses that the provision at issue
provides that the agency agreed to promote complainant in the event
that his supervisor rated him �fully successful� during a designated
period�from January 1998 to April 1998. When his supervisor did not
provide him with a �fully successful� rating for this period, he filed the
June 1998 grievance alleging that the agency breached the grievance SA.
Subsequently, after he received his annual performance appraisal, on
October 28, 1999, he contacted an EEO Counselor claiming that it was
unfairly low because of race discrimination.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(4)) provides that an agency may dismiss a
complaint where the complainant has raised the same matter in a negotiated
grievance procedure that permits claims of discrimination.
As a threshold matter, we note that 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, and that complainant elected to use
the grievance procedure. After careful review, the Commission determines
that the grievance SA performance appraisal was a significant factor
in assessing complainant's annual performance appraisal at issue in
his EEO complaint, because it included the SA rating period. Moreover,
we note that complainant's statement in support of his complainant, as
well as the June 1998 grievance, make reference the SA and the on-going
unfairness in the assessment of work performance, each arguing that
low evaluations are preventing complainant's promotion. Accordingly,
we find that the June 1998 grievance and the instant EEO complaint
are �inextricably intertwined� such that the agency's dismissal of the
instant complaint was proper. See Rothchild v. Department of the Navy,
EEOC Appeal No. 01985644 (December 28, 1999).
Accordingly, for the reasons stated above, we AFFIRM the FAD.
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 (S0400)
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:
July 27, 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 Equal Employment Assistant
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.