02A20012
03-13-2003
Cecil Wear, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Cecil Wear v. Social Security Administration
02A20012
03-13-03
.
Cecil Wear,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 02A20012
Agency No. 0AR3510
DECISION
Complainant timely initiated an appeal from a decision of the Federal
Labor Relations Authority concerning his grievance regarding his sick
leave restriction and a five-day suspension. The appeal is accepted
pursuant to 29 C.F.R. � 1614.405.
ISSUE
The issue on appeal is whether the decision of the Federal Labor Relations
Authority (FLRA) presents a matter subject to the Commission's review.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a claims clerk at the agency's Evanston, Illinois facility.
On September 20 and October 2, 1996, complainant was counseled on
a pattern of sick leave abuse. On November 26, 1996, complainant was
placed on sick leave restriction, requiring that sick leave or substituted
annual leave be supported by a medical certificate and that scheduled
appointments have prior approval. On December 5, 1996, complainant
initiated a step 1 grievance. Complainant's description of his grievance
read �sick leave restriction � discrimination.� The complainant
pursued this matter through steps 2 and 3 of the grievance process.
Complainant's grievance was denied at each step of the grievance process.
Apart from writing the word discrimination on his step 1 grievance form
no evidence showed that complainant raised a claim of discrimination as
set out in applicable statutes.<1>
On February 8, 1999, the agency suspended complainant for five days,
because complainant failed to follow proper procedures for requesting
and obtaining approved leave which resulted in a charge of 115 � hours
absence without leave. Complainant grieved the suspension through steps
1-3 of the grievance process. Complainant's grievance was denied at each
step of the process. At no time did complainant raise discrimination
as a basis of the grievance.
Both the sick leave restriction and the five-day suspension went
to arbitration on November 27, 2001, and on January 11, 2002, an
arbitrator ruled in the agency's favor. The arbitrator's decision did
not address an issue of discrimination. Complainant filed exceptions
to the arbitrator's award, and on April 18, 2002, the FLRA issued a
decision denying the union's exceptions. The FLRA decision did not
address an issue of discrimination. This FLRA decision is the subject
of complainant's May 17, 2002 appeal.
Neither the complainant nor the union filed an appeal brief. The agency
argued that the Equal Employment Opportunity Commission (EEOC or
Commission) lacked jurisdiction to decide a matter which did not raise
a claim of discrimination.
ANALYSIS
EEOC regulation 29 C.F.R. � 1614.401(d) provides that an appeal may
be filed from the final decision of an agency, an arbitrator, or the
FLRA on a grievance action where an issue of employment discrimination
was raised. Here, the only claim of employment discrimination was
set out on complainant's step 1 grievance form, without any evidence
or argument on employment discrimination. Where the complainant has
failed to raise a claim of employment discrimination at any stage of
the process, and where both the arbitrator and FLRA are silent on the
issue of discrimination, we conclude that complainant cannot prevail.
Begay v. Department of the Interior, EEOC Appeal No. 01981947 (Sept. 22,
1999), request to reopen denied, 05A00065 (Mar. 16, 2000) (appeal
dismissed where complainant failed to raise discrimination before
arbitrator or FLRA); Snead v. Pension Benefit Guaranty Corporation,
EEOC Appeal No. 02990004 (Mar. 25, 1999) (same).
CONCLUSION
Based on a careful review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
dismiss the appeal.
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
____03-13-03______________
Date
1 Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C �
2000e et seq., Age Discrimination in Employment Act of 1967, as amended,
29 U.S.C. � 633a; Rehabilitation Act of 1973, 29 U.S.C. � 501 et seq.,
as amended by the Americans with Disabilities Act, 42 U.S.C. � 12101
et seq., Equal Pay Act of 1963, as amended, 29 U.S.C. � 206(d); Civil
Rights Act of 1991, 42 U.S.C. � 1981 et seq.