George L. Sanders, Complainant,v.Mike Leavitt, Secretary, Department of Health and Human Services, (Public Health Service), Agency.

Equal Employment Opportunity CommissionMay 15, 2007
0120071304 (E.E.O.C. May. 15, 2007)

0120071304

05-15-2007

George L. Sanders, Complainant, v. Mike Leavitt, Secretary, Department of Health and Human Services, (Public Health Service), Agency.


George L. Sanders,

Complainant,

v.

Mike Leavitt,

Secretary,

Department of Health and Human Services,

(Public Health Service),

Agency.

Appeal No. 0120071304

Agency No. HHS-IHS 0055-2007

DECISION

Complainant filed a timely appeal with this Commission from the final

agency decision dated December 14, 2006, dismissing his formal 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.

During the relevant time, complainant was employed as a Medical Officer,

GS-602-15, at the agency's Gallup Indian Medical Center.

On November 27, 2006, complainant filed the instant formal EEO complaint.

Therein, complainant claimed that he was a victim of unlawful employment

discrimination on the basis of race (African-American) when:

in April of 2006, he was subjected to a reduction in pay.

The record reflects that in April 2006, complainant was informed that

his salary and retention pay would be adjusted effective May 1, 2006.

The record further reflects that complainant's retention pay, which had

been 25% of his base salary, was reduced to 22% of his base salary. As a

result, there was decrease of complainant's gross salary per pay period.

In its December 14, 2006 final decision, the agency dismissed the formal

complaint pursuant to 29 C.F.R. � 1614.107(a)(4), on the grounds that

complainant filed a grievance on July 13, 2006, on the same matter prior

to the filing of his EEO complaint.

On appeal, complainant, through his attorney, acknowledges that he

had filed a grievance concerning his pay status. Complainant argues,

however, that at the time he pursued a grievance, he was unaware that

he was being treated differently from a similarly situated Caucasian

physician, and did not become aware of the difference in treatment until

October 10, 2006. Complainant further argues that upon discovery of

the purported disparate treatment, he immediately filed the instant

formal complaint. Furthermore, complainant states "it is a Catch-22,

if not Kafkaesque for the agency to claim that [complainant] elected

his forum with regard to his discrimination claim when he filed with

his Union, even though no knowledge of a discrimination claim existed

at the time of the union grievance."

EEOC Regulation 29 C.F.R. � 1614.301(a) states that when a person is

employed by an agency subject to 5 U.S.C. � 7121(d) and is covered by a

collective bargaining agreement that permits claims of discrimination to

be raised in a negotiated grievance procedure, a person wishing to file a

complaint or grievance on a matter of alleged employment discrimination

must elect to raise the matter under either part 1614 or the negotiated

grievance procedure, but not both. An aggrieved employee who files a

grievance with an agency whose negotiated agreement permits the acceptance

of a grievance which alleged discrimination may not thereafter file

a complaint on the same matter under part 1614 irrespective of whether

the agency has informed the individual of the need to elect or whether

the grievance has raised an issue of discrimination.

The record supports a determination that at the time complainant filed

his grievance concerning his pay status, he was unaware that the pay

reduction was purportedly the consequence of discriminatory animus.

The record further indicates that it was not until October 10, 2006,

when complainant became aware that he was being treated differently from

a similarly situated Caucasian Medical Officer who did not receive a cut

in his retention salary for the same time periods. We are persuaded

by complainant's assertion on appeal that complainant could not have

addressed the discriminatory nature of this allegation in the grievance

process because at the time the grievance was filed, the purported

discriminatory actions were still undiscovered. In that regard, we find

that the agency's decision dismissing complainant's complaint on the

grounds that he raised the same matters through the agency's negotiated

grievance procedure was improper.

Accordingly, the agency's decision is REVERSED and the complaint is

REMANDED to the agency in accordance with this decision and 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 (K0501)

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) (1994 & Supp. IV 1999).

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 (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 (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

May 15, 2007

__________________

Date

2

0120071304

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

5

0120071304

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