01A15114_r
04-15-2002
John Mayo, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
John Mayo v. Department of Veterans Affairs
01A15114
April 15, 2002
.
John Mayo,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A15114
Agency No. 99-5400
Hearing No. 150-A1-8203X
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(4).
In a complaint dated September 8, 1999, complainant alleged that he
was discriminated against on the of race, sex and in reprisal for prior
EEO activity, when:
On or about June 15, 1999, complainant was detailed to the position
of Cook (Ingredient Control), a lower graded position which included
tasks outside of his current position description.
Complainant received a letter of proposed admonishment and, subsequently,
a Letter of Admonishment on or about July 2, 1999, regarding an incident
that occurred May 11, 1999.
After the complaint was accepted for investigation, complainant requested
a hearing before an Administrative Judge (AJ) of the Commission. In a
decision dated July 17, 2001, the AJ dismissed both claims on the grounds
that complainant had previously filed a grievance with the Federal Labor
Relations Authority (FLRA) concerning the exact same claims. The AJ
found that the agency was subject to the provisions of 5 U.S.C. 7121 (d),
and that the agency's collective bargaining agreement (CBA) provides
for claims of discrimination to be raised in the negotiated grievance
process. According to the AJ, "There is no dispute that Complainant
filed a grievance on the aforesaid issues prior to filing his EEO
Complaint.� In a footnote, the AJ noted that complainant had answered
agency interrogatories concerning the details of his EEO complaint,
by referring to an attached copy of his FLRA charge. Consequently,
the AJ dismissed the complaint, pursuant to 29 C.F.R.� 1614.301(a),
29 C.F.R.�1614.107(a)(4) and 29 C.F.R. �1614.109(b).
In its final action dated July 30, 2001, the agency implemented the
AJ's decision.
On appeal, complainant argues that his July 19, 1999 FLRA �Charge Against
An Agency,� was a charge of an unfair labor practice filed with the
Department of Labor, and not a union-initiated grievance or complaint
filed pursuant to a negotiated grievance process, as contemplated by
the collective bargaining agreement cited by the agency.
An employee who is subject to 5 U.S.C. � 7121 (d) may raise a claim of
prohibited discrimination under either the EEO complaint process or a
negotiated grievance procedure that allows such claims, but not both. 29
C.F.R. � 1614.301. The employee must elect the forum in which to pursue
the matter. When the grievance is filed first under a negotiated grievance
procedure that permits allegation of discrimination to be raised, the
individual may not subsequently file a complaint of discrimination on
the same matter. The agency must dismiss such a complaint. 29 C.F.R. �
1614.107(a)(4).
The record confirms that on July 19, 1999, complainant filed through
the Federal Labor Relations Authority, a �Charge Against An Agency� also
called a charge of unfair labor practices (ULP), in violation of 5 USC
Section 7116(a) subsections (1), (2), and (4), regarding complainant's
receipt of a proposed (and subsequently issued), �Letter of Admonishment�
which actions he claims were in retaliation for his having previously
filed other charges and EEO complaints against the agency.
The record contains a copy of a portion of the �Master Agreement Between
the Veterans Administration and the American Federation of Government
Employees.� This document is a collective bargaining agreement (CBA)
between the agency and the union, under which complainant's position is
covered, which provides a negotiated grievance procedure available to
covered employees.
The CBA specifically provides that a complainant must elect to pursue
a claim through the EEO process or the negotiated grievance process in
place at the agency. Specifically, the CBA states that:
"A. As provided for in 5 USC Section 7121, the following actions may be
filed either under the statutory procedure or the negotiated grievance
procedure, but not both:
Actions based on unsatisfactory performance (5 USC Section 4303).
Adverse actions (5 USC Section 7512). and/or
Discrimination (5 USC Section 2302(b)(1)).
...
C. An employee shall be deemed to have exercised her option under this
Section when she timely initiates an action under the applicable statutory
procedure or files a timely grievance in writing under the negotiated
grievance procedure, whichever occurs first. ...
The above referenced CBA does not specifically discuss the ULP process.
We therefore determine that complainant has not �filed a grievance
pursuant to a negotiated grievance procedure� that would otherwise
prohibit his filing an EEO complaint on the same matters. See, e.g.,
Cobian V. Department of the Navy, EEOC Appeal No. 01991259 (August
22, 2001). We note, moreover, that while the matter addressed in
claim 2 (Letter of Admonishment) was raised in the ULP process,
the matter addressed in claim 1 (detail to a Cook position) was not
raised therein. Accordingly, we REVERSE the agency's final action to
dismiss the complaint. The complaint is hereby REMANDED to the agency
for processing in accordance with the ORDER below.
ORDER
The agency shall submit to the Hearings Unit of the EEOC Miami District
Office a request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. The agency is directed to submit
a copy of the complaint file to the EEOC Hearings Unit within fifteen
(15) calendar days of the date this decision becomes final. The agency
shall provide written notification to the Compliance Officer at the
address set forth below that the request and complaint file have been
transmitted to the Hearings Unit.
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 15, 2002
__________________
Date