01a55297
12-13-2005
Cleveland B. Kersey, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Cleveland B. Kersey v. Department of the Army
01A55297
December 13, 2005
.
Cleveland B. Kersey,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A55297
Agency No. ARFTLEAV04MAY09131
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 22, 2005, dismissing 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., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. In his complaint, complainant alleged that he
was subjected to discrimination on the bases of race (African-American),
religion (African Methodist Episcopal), age (D.O.B. December 18, 1951),
and reprisal for prior EEO activity when:
Effective April 3, 2005 he was demoted from a licensed clinical social
worker, GS-11 to an Inmate Services Clerk, GS-05: and
His senior rater judged him intolerant of a lesbian colleague and not
supportive of the open homosexual identity of an inmate during a group
session conducted in July 2004.
The agency dismissed the claims under 29 C.F.R. � 1614.107(a)(4), finding
that complainant had elected to pursue the matter under a negotiated
grievance procedure. On appeal, complainant argues that the issues
of discrimination were not addressed in his grievance. The agency on
appeal argues that complainant had the opportunity to raise issues of
discrimination during the procedure, and that if he was unsatisfied with
the initial grievance decision, he had the option to request mediation
and, following that, arbitration, neither of which complainant chose
to do.
We note that under 29 C.F.R. � 1614.301(a) a person may file a complaint
under either the negotiated grievance procedure or the EEO procedure,
but not both. Furthermore, a person �who files a grievance with an
agency . . . may not thereafter file a (discrimination) complaint
on the same matter . . . irrespective of whether . . . the grievance
has raised an issue of discrimination.� Id. The record shows that
complainant filed a grievance on his demotion on April 15, 2005 in which
he included as one reason for his demotion the fact that his rater felt
complainant was intolerant of a lesbian colleague and unsupportive of
the open homosexual identity of an inmate. The record further shows
that complainant filed his Formal EEO Complaint on the same matters on
June 23, 2005. Given the fact that he filed his grievance before filing
his EEO Complaint, under the applicable regulations, his EEO Complaint
must be dismissed. Accordingly, the agency's final decision dismissing
complainant's complaint is 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
December 13, 2005
__________________
Date