0120081597
05-01-2008
Donald Smith, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Donald Smith,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120081597
Agency No. 200406522007102596
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated August 1, 2007, 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.
Upon review, the Commission finds that complainant's complaint was
properly dismissed.
In a complaint dated June 21, 2007, complainant alleged that he was
subjected to discrimination on the basis of reprisal when he was removed
from his position for violating a last-chance agreement.
Effective April 21, 2006, complainant was removed from his position as
a Health Technician, GS-5, at the agency's medical center in Richmond,
Virginia. The removal decision was issued on April 17, 2006, and stated
the reason for the removal was for violating a last-chance agreement.
The record reveals that complainant was initially informed that he had
violated the last-chance agreement on March 31, 2006, and he immediately
pursued the matter through the negotiated grievance system. Once a final
decision had been made on his removal, complainant filed an appeal of
the removal with the Merit Systems Protection Board (MSPB). In a decision
dated September 14, 2006, the MSPB found that although complainant had
violated the last chance agreement, he had waived his right to appeal
the matter to the MSPB. As such, the MSPB dismissed the matter for lack
of jurisdiction.
Complainant contacted an EEO counselor on May 9, 2007, concerning the
instant complaint, alleging he was discriminatorily removed from his
position based on retaliation for having filed the union grievance over
the March 2006 charge that he had violated the last-chance agreement. The
agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(4),
because complainant had previously raised the same matter before the
MSPB and in the grievance process.
As noted above, the record shows that the MSPB dismissed the matter
for lack of jurisdiction, in which case an agency would then usually be
required to process a subsequent EEO complaint on the matter.1 Moreover,
the record is not clear that complainant's actual removal in April 2006
was pursued through the grievance process, as opposed to the March 2006
preliminary charge of breach of the last-chance agreement.
However, the Commission finds that the matter is more properly dismissed
for failure to contact an EEO counselor in a timely manner. EEOC
Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action. Here,
the complainant did not contact the EEO counselor until nearly nine
months after he received the MSPB decision and over a year after his
removal was effective.
In addition, the Commission notes that complainant alleges reprisal for
filing his union grievances - but there is nothing in the grievances
provided that he raised claims of discrimination therein. Without an
allegation that he was being retaliated against for engaging in prior EEO
activity, as opposed to union activity, complainant has failed to assert
a viable claim of unlawful retaliation under the anti-discrimination
statutes. 29 C.F.R. � 1614.107(a)(1).
Accordingly, the Commission finds that the agency's dismissal should be
affirmed, albeit on other grounds.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
May 1, 2008
__________________
Date
1 We note, however, that there is no indication that complainant raised
his discrimination claims before the MSPB.
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0120081597
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120081597