02990004
03-25-1999
Louis C. Snead, Appellant, v. Alexis M. Herman, Chairman, Benefit Guaranty Corporation, Agency.
Louis C. Snead, )
Appellant, )
)
v. ) Appeal No. 02990004 ) Agency No. 96-4
Alexis M. Herman, )
Chairman, ) Pension
Benefit Guaranty )
Corporation, )
Agency. )
_________________________________)
DISMISSAL OF APPEAL
INTRODUCTION
On March 27, 1998, Louis C. Snead (hereinafter referred to as appellant)
filed an appeal to the Equal Employment Opportunity Commission (the
Commission) regarding the Pension Benefit Guaranty Corporation's
(hereinafter referred to as the agency) action removing him from his
position. The appeal is accepted in accordance with EEOC Order No. 960,
as amended.
ISSUE PRESENTED
The issue on appeal is whether the arbitrator's decision from which
appellant appeals presents a matter subject to the Commission's review.
BACKGROUND
Appellant appeals from an arbitrator's decision upholding his
termination.<1> The following is a summary of the relevant facts and
procedural history of this case.
Appellant worked for the agency as a GS-7 Collections Technician. In
October 1995, appellant accused an agency official of sexually assaulting
him while he was in the agency official's office. Following a prompt
investigation, the agency determined that appellant fabricated the sexual
assault claim. In May 1996, the agency proposed to remove appellant
from his position on the following charges: 1) his false accusation of
sexual assault and 2) compounding this fabrication by submitting false
claims under the Federal Employee Compensation Act (FECA). The agency
upheld the removal, effective July 13, 1996.
Appellant invoked expedited arbitration under the collective bargaining
agreement (CBA). Following the hearing, the arbitrator concluded
that the agency official never assaulted appellant and that appellant
�engaged in misconduct of a gravely serious nature and [his co-worker]
was a willing accomplice.�<2> The arbitrator upheld the removal. A review
of the hearing transcript showed that appellant did not present evidence
or argument regarding any allegations of discrimination during the
arbitration hearing.
Upon receipt of the arbitrator's decision, appellant appealed to the
Merit Systems Protection Board (MSPB). In his appeal, appellant
alleged that the removal constituted unlawful discrimination. In its
April 30, 1997 decision, the MSPB dismissed the appeal for lack of
jurisdiction. Specifically, the MSPB found that appellant had raised
allegations of discrimination under 5 U.S.C. �2302(b)(1). Because
government corporations are excluded from coverage under that section,
and because the agency was a government corporation, the MSPB concluded
that appellant could not invoke that section in alleging that the agency
discriminated against him.
Appellant filed a civil action in the United States District Court for
the District of Columbia on July 29, 1997. Therein, appellant alleged
that the removal was the result of race and reprisal discrimination in
violation of Title VII. Upon review, the court found that it lacked
subject matter jurisdiction because the MSPB had not reached the merits
of appellant's appeal of the arbitrator's decision.<3> Consequently,
on March 17, 1998, the court dismissed appellant's civil action without
prejudice.
On March 27, 1998, appellant filed the instant appeal, alleging that his
removal was the result of race, reprisal, and disability discrimination.
ANALYSIS AND FINDINGS
Appellant invoked arbitration and then filed his appeal from the
arbitrator's decision with the MSPB. Upon receipt of the MSPB's decision,
appellant filed a civil action, albeit it in the wrong forum, i.e., the
Federal district court rather than the Court of Appeals for the Federal
Circuit. When the district court dismissed appellant's civil action
for lack of jurisdiction, appellant filed the instant appeal within
the thirty-day filing period. For purposes of the following analysis,
the Commission assumes that appellant's appeal was timely filed.
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 allegations
of discrimination to be raised in a negotiated grievance procedure, the
person must elect to raise a matter of alleged employment discrimination
under either part 1614 or the negotiated grievance procedure, but not
both. 29 C.F.R. �1614.301(a).
An election to proceed under a negotiated grievance procedure is indicated
by the filing of a timely written grievance. Id. An aggrieved employee
who files a grievance with an agency whose negotiated agreement permits
the acceptance of a grievance which alleges discrimination may not
thereafter file a complaint on the same matter under this part 1614
irrespective of whether the agency has informed the individual of
the need to elect or of whether the grievance has raised an issue of
discrimination. (emphasis added) Id.; see also 5 U.S.C. �7121(d).
A review of the collective bargaining agreement (CBA) in this case shows
that employees may raise allegations of discrimination in the negotiated
grievance process pursuant to 5 U.S.C. �7121(d). Appellant invoked
expedited arbitration as permitted by the CBA,<4> but did not raise
evidence or arguments regarding any allegations of discrimination at
the hearing before the arbitrator. Consequently, the Commission finds
that the arbitrator's decision contains no matters subject to its review
and therefore dismisses the appeal. In reaching this conclusion, the
Commission notes that it considered all of the arguments and evidence
presented in appellant's appeal brief, including that not addressed
directly herein.
CONCLUSION
Based upon a careful review of the record, and for the foregoing reasons,
it is the decision of the Equal Employment Opportunity Commission to
DISMISS the appeal.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
March 25, 1999
DATE Frances M. Hart
Executive Officer
1Appellant's appeal mistakenly was docketed as an appeal from a final
agency decision in EEOC Appeal No. 01983322. In December 1998, appellant
was advised of the error and his appeal was redocketed under the instant
case number.
2The co-worker also was removed from Federal government service.
An appeal from this individual is pending before the Commission in EEOC
Appeal No. 02990006.
3The court noted that rather than file a de novo civil action in district
court, appellant should have appealed the MSPB's jurisdictional holding
to the United States Court of Appeals for the Federal Circuit, which
has exclusive jurisdiction over MSPB decisions construing the MSPB's
jurisdiction.
4The Commission previously has held that an appellant's request to
bypass the grievance stage and go directly to arbitration constitutes
an election under the regulations. See Smith v. Nat'l Labor Relations
Board, EEOC Request No. 05910640 (October 25, 1991).