01a34345_r
03-10-2004
Jack D. Fagan, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Jack D. Fagan v. Department of the Army
01A34345
March 10, 2004
.
Jack D. Fagan,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A34345
Agency No. ARREDRIV02AUG0029
DECISION
Upon review, the Commission finds that the agency's decision dated June
5, 2003, dismissing complainant's complaint for failing to state a claim
and for raising the same matter in a grievance is proper pursuant to 29
C.F.R. �� 1614.107(a)(1) and (a)(4). The agency defined the complaint,
dated December 11, 2002, as alleging that complainant was discriminated
against based on his age (68) when:
�[Complainant] was assigned on a continuous basis, as an Equipment
Specialist, which included the north wash rack, south [wash] rack and
hydraulic shop and of course other areas.�
�Equipment Specialists were in the areas, as they are today, to inspect
equipment that was out dated and need[ed] repair or replacement. Also,
to provide any assistance that the supervisor need[ed] in order to meet
production commitments.�
�Exposure to hazardous materials especially over a prolonged period of
time mean[t], [complainant] is more than likely to be infected.�
�It appears as if [complainant,] as an Equipment Specialist[,] is being
treated different in relationship to wage grade employees.�
�The Red River Army Depot and National Federation of Federal Employee
(NFFE) Union, Local 2189, cadmium committee determined that [complainant]
did not qualify for a monetary settlement as environmental differential
pay for exposure to cadmium during the resolution of a group grievance
filed on behalf of bargaining unit members by NFFE.�
The record indicates that complainant, through his union, previously filed
a group grievance on June 21, 2000, concerning environmental differential
pay for bargaining unit members exposed to airborne concentration of
cadmium. On October 17, 2001, the union and the agency entered into a
settlement agreement. Pursuant to the settlement agreement, complainant
submitted his cadmium data sheet to the union and the agency negotiating
teams on November 11, 2001, wherein, he provided information about
his past work practice and requested environmental differential pay.
On June 12, 2002, the union and the agency advised complainant that he
was not due a monetary settlement on the grounds that his work practice
did not support an entitlement to the environmental differential pay
for potential exposure to cadmium.
Upon review, the Commission finds that the instant complaint constitutes a
collateral attack on the grievance processing, i.e., concerning cadmium
committee's decision of June 12, 2002. Specifically, complainant
indicated in his complaint that he was discriminated against when he
received the June 12, 2002 letter stating that he did not qualify for
a monetary settlement under the October 17, 2001 settlement agreement.
Therefore, the complaint is properly dismissed for failure to state
a claim pursuant to 29 C.F.R. � 1614.107(a)(1). Furthermore, the
Commission finds that the matter of the instant complaint has been raised
in the grievance process. The record contains the collective bargaining
agreement which clearly permits claims of discrimination to be raised
by an aggrieved employee during the negotiated grievance procedure.
Therefore, the instant complaint is properly dismissed pursuant to 29
C.F.R. � 1614.107(a)(4). Furthermore, the Commission does not implement
grievance settlements.
Accordingly, the agency's decision 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
March 10, 2004
__________________
Date