01A04031
11-28-2000
Christopher Jenkins, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Christopher Jenkins v. Department of the Navy
01A04031
November 28, 2000
.
Christopher Jenkins,
Complainant,
v.
Richard J. Danzig,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A04031
Agency No. DON (MC) 000-00263-004
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision dated April 26, 2000, dismissing his complaint of unlawful
employment discrimination brought pursuant to 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 29 C.F.R. � 1614.405.
According to the record, on May 27, 1999, the agency issued complainant
a proposed seven-day suspension due to customer complaints received
regarding his service. Complainant filed a grievance with the Union
regarding this suspension, which was denied at �Step-3" on September
13, 1999.
During the course of this grievance process, complainant was issued a
proposed fourteen-day suspension on August 17, 1999, again regarding
customer complaints. Complainant did not file a written grievance
regarding the fourteen-day suspension. However, the Union president
and a Union representative contacted management officials in an effort
to begin the grievance process, and to formally settle the dispute.
However, when complainant failed to engage in the settlement effort
or the grievance process, the agency issued its decision to suspend
complainant for fourteen days on January 12, 2000.
Complainant contacted an EEO Counselor on February 24, 2000, contending
that the agency was trying to remove him from his position as the only
remaining black worker at his facility. Complainant additionally claimed
that the co-worker and customer complaints were not legitimate, and that
the same complaints were being used to justify the fourteen-day suspension
that were used to justify the seven-day suspension. Complainant filed a
formal complaint on April 10, 2000, claiming race discrimination regarding
the fourteen-day suspension.
The agency dismissed the complaint, finding that complainant filed a
written grievance regarding the fourteen-day suspension, thereby electing
to pursue the matter in that forum. The agency's decision also noted that
complainant could not negate this election by withdrawing his grievance.
On appeal, complainant restated his position as set forth in the
EEO Counselor's Report and formal complaint. In response, the agency
acknowledges that complainant did not file a written grievance regarding
the fourteen-day suspension, but argues that e-mails between management
officials and Union officials; the settlement attempt; and a January 28,
2000 meeting between complainant's Union representative and a management
official, are all evidence that complainant elected to pursue this matter
in the grievance process.
The regulation set forth at 29 C.F.R. � 1614.107(a)(4) provides that
an agency may dismiss a complaint where the complainant has raised
the matter in a negotiated grievance procedure that permits claims
of discrimination. Here, 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. However, after carefully reviewing
the record, we find that complainant elected to raise the instant claim
in the EEO process, and not in the grievance process.
Although it is true that the Union president, and a Union representative,
contacted management regarding the fourteen-day suspension, there is no
indication that they were doing so with complainant's authorization for
them to act on his behalf. In fact, management's February 15, 2000
e-mail to the Union president regarding the January 28, 2000 meeting
reflects that the Union representative at this meeting could not provide
documentation that complainant had designated him as his representative.
Furthermore, this e-mail reflects that this �representative� was unable
to obtain any of the information necessary to proceed with the grievance
process. The last two lines of the e-mail read as follows:
Regardless, over 30 days in all have past (sic) and I still have
nothing from [complainant]. If [complainant] intends to proceed with
this grievance then I expect to receive his written statement soon or
at least be informed of any reasons for further delay.
Based on this statement, coupled with the fact that the record does not
reflect that complainant filed a written grievance or designated a Union
representative, we find that complainant had no intention to elect the
grievance process to address the fourteen-day suspension. Consequently,
he could not have withdrawn from the grievance process, as also claimed
by the agency, because he never initiated, authorized or participated in
this grievance process. Similarly, regarding the settlement attempt,
we note that the record is devoid of any indication that complainant
agreed to mediate this matter, and he appears to have played no part in
the settlement attempt.
On the other hand, complainant's intention to elect the EEO forum is
reflected in his October 6, 1999 letter to the General Commander, which
he wrote after receiving the proposed fourteen-day suspension, wherein
complainant states his belief that the agency's disciplinary actions were
racially motivated. Complainant then followed up on this intention when
he initiated timely EEO Counselor contact after the agency acted on the
proposal and issued the decision to suspend him for fourteen days.
Accordingly, the agency's final decision dismissing the instant complaint
is REVERSED. The complaint is hereby REMANDED for further processing
in accordance with the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 28, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.