01a60123_r
04-05-2006
Harvey C. Canty, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Harvey C. Canty v. Department of Veterans Affairs
01A60123
April 5, 2006
.
Harvey C. Canty,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A60123
Agency No. 0552-2005-102943
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision dated August 30, 2005, dismissing his formal EEO complaint of
unlawful employment discrimination brought pursuant to Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. The Commission accepts the appeal. 29 C.F.R. � 1614.405.
On August 22, 2005, complainant filed a formal complaint. Therein,
complainant claimed that he was the victim of unlawful employment
discrimination on the basis of disability, when the agency denied his
request for a retirement �early buy-out,� on or about April 29, 2005.
On August 30, 2005, the agency issued a final decision. The agency
dismissed the complaint on the grounds that complainant first filed
a grievance on this same matter. Specifically, the agency determined
that after the third step grievance decision was issued on May 19, 2005,
complainant contacted an EEO Counselor on June 17, 2005, and filed a
formal complaint on August 22, 2005.
On appeal, complainant argues that a union representative advised him
to file an EEO complaint, and that he did not realize that he filed a
grievance �until after-the-fact.� In response, the agency asserts that a
copy of the grievance complainant filed is of record, and that complainant
signed and dated it on May 6, 2005, which belies his claim that he did
not realize that he had filed a grievance. The agency also notes that
the grievance failed, because the matter alleged by complainant was
not a matter covered by the grievance procedure. The agency further
avers that its union contract specifies that a complainant cannot file
both a grievance and an EEO complaint concerning the same matter, and
because complainant filed the grievance first, his EEO complaint must
be dismissed.
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 first raised
the matter in a negotiated grievance procedure that permits claims of
discrimination.
Here, based on the agency's appeal statement, we find that the subject
matter of the grievance, i.e., denial of a request for a retirement
�early buy-out,� was not covered by the negotiated grievance procedure.
Therefore, because complainant filed a grievance on a non-grievable
matter, we find that complainant's election to first pursue the grievance
process is abrogated. The agency improperly dismissed the instant
complaint pursuant to 29 C.F.R. � 1614.107(a)(4).
Accordingly, we REVERSE the agency's final decision and we REMAND the
complaint to the agency for processing pursuant to 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
April 5, 2006
__________________
Date