01980269
03-05-1999
Parnard L. Johnson, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs,) Agency.
Parnard L. Johnson v. Department of Veterans Affairs
01980269
March 5, 1999
Parnard L. Johnson, )
Appellant, )
)
v. ) Appeal No. 01980269
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs,)
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The final agency decision was issued on July
31, 1997. The appeal was postmarked October 3, 1997. Accordingly,
the appeal is timely (see 29 C.F.R. �1614.402(a)), and is accepted in
accordance with EEOC Order No. 960, as amended.<1>
ISSUES PRESENTED
1. The first issue presented on appeal is whether the agency properly
dismissed allegations 1-3 of appellant's complaint on the grounds that
appellant elected to pursue these matters through the agency's negotiated
grievance procedure; and
2. The second issue presented on appeal is whether the agency properly
dismissed allegation 4 of appellant's complaint on the grounds that it
states the same claim as that pending before the agency.
BACKGROUND
The record reveals that appellant initiated contact with an EEO Counselor
on May 29, 1996. On August 9, 1996, appellant filed a formal EEO
complaint wherein he alleged that he had been discriminated against
on the bases of his race (black) and in reprisal for his previous EEO
activity when:
1. He was counseled in writing on or about March 27, 1996.
2. He was suspended in March, April and June of 1996.
3. He was counseled in writing on or about May 16, 1996.
4. He was counseled in writing on or about May 24, 1996.
5. He was counseled in writing on or about May 29, 1996.
6. He was removed from employment effective September 6, 1996.
Initially, the complaint was accepted for investigation. Subsequent
to the investigation, by memorandum dated May 4, 1997, the EEO
Office notified the agency's Office of General Counsel that appellant
previously raised some of his allegations through the negotiated grievance
procedure and the EEO Office recommended that those allegations should
be dismissed.
In its final decision dated July 31, 1996, the agency dismissed
allegations 1, 2, and 3 of appellant's complaint on the grounds that
appellant elected to raise these matters through the negotiated grievance
procedure before he filed his formal EEO complaint. According to
the agency, appellant filed grievances with regard to these matters
in March, April, and June of 1996. With respect to allegation 1, the
agency stated that the written counseling allegedly issued on March 27,
1996, was issued on March 29, 1996 instead. As for allegation 2, the
agency determined that appellant was suspended in April and June of 1996,
but not in March 1996. With regard to allegation 3, the agency stated
that the alleged written counseling of May 16, 1996, actually occurred
on April 16, 1996. The agency noted that appellant also invoked the
negotiated grievance procedure with regard to allegation 6, but that
this grievance was filed after the formal EEO complaint. The agency
dismissed allegation 4 on the grounds that it states the same claim
that is pending before the agency. According to the agency, allegation
4 is identical to allegation 5. The agency determined that the written
counseling referenced in allegation 4 was issued on May 29, 1996, rather
than May 24, 1996. Thereafter, appellant filed the instant appeal.
In response to the instant appeal, the agency asserts that the appeal
relates to a final decision that it issued on September 30, 1997, with
regard to the merits of appellant's complaint, rather than the final
agency decision issued on July 31, 1997.
ANALYSIS AND FINDINGS
Initially, we note that the agency issued its procedural dismissal
decision on July 31, 1997, and subsequently issued a decision on the
merits of the two remaining allegations on September 30, 1997. In his
appeal of October 3, 1997, appellant did not specify which decision he
was appealing. Absent some evidence to the contrary, the Commission
has determined to process appellant's appeal as an appeal of both final
agency decisions. The appeal of the merit decision is presently being
processed under EEOC Appeal No. 01992596.
EEOC Regulation 29 C.F.R. �1614.301(a) provides in relevant part 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 allegations
of discrimination to be raised in a negotiated grievance procedure, a
person wishing to file a complaint or a 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.
The record reflects that discrimination claims are permitted pursuant to
the agency's collective bargaining agreement with the union. With regard
to allegation 1, we note that although the agency determined that the
written counseling was issued on March 29, 1996, rather than March
27, 1996, the record contains a written counseling that was issued on
March 27, 1996, based on appellant's failure to follow instructions.
The record indicates that appellant filed a grievance with respect to
the letter of counseling that he received on March 29, 1996, rather than
the letter of counseling he received on March 27, 1996. Accordingly,
the agency's dismissal of allegation 1 was improper and is REVERSED.
As for allegation 2, the record contains a grievance filed on March 21,
1996, with regard to the suspension that became effective in April 1996.
The record also includes a grievance filed on July 3, 1996, with
respect to the suspension issued to appellant in June 1996. There is
no indication that appellant was suspended in March 1996. Accordingly,
the agency's dismissal of allegation 2 was proper and is AFFIRMED.
With regard to allegation 3, we note that the agency determined that the
written counseling of May 16, 1996, actually occurred on April 16, 1996.
The April 16, 1996 written counseling was issued to appellant based on
his excessive use of sick leave. A grievance was filed on April 18,
1996, concerning the sick leave counseling. However, according to the
EEO Counselor's report, appellant stated that on or about May 16, 1996, he
received a written counseling because another employee left records in his
work area without his knowledge. The agency has not refuted appellant's
position that a written counseling was issued on or about May 16, 1996.
Further, there is no indication that appellant filed a grievance with
regard to the May 16, 1996 written counseling. Accordingly, the agency's
dismissal of allegation 3 was improper and is REVERSED.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that states the same claim
that is pending before or has been decided by the agency or Commission.
The agency dismissed allegation 4 under this provision because this
allegation stated the same claim as allegation 5. With regard to
allegation 5, the record contains a written counseling issued to appellant
on May 29, 1996, for insubordination and failure to follow instructions.
The written counseling stated that appellant failed to ensure that
records for the next day's clinic appointments were delivered by the
designated time. We note that the same issues are referenced in the EEO
Counselor's report with regard to allegation 4, the written counseling
allegedly issued on May 24, 1996. Absent evidence to the contrary,
we find that the written counseling referenced in allegation 4 was the
written counseling issued on May 29, 1996. Accordingly, the agency's
dismissal of allegation 4 was proper and is AFFIRMED.
CONCLUSION
The agency's decision to dismiss allegations 2 and 4 is hereby AFFIRMED.
The agency's decision to dismiss allegations 1 and 3 is hereby REVERSED.
Allegations 1 and 3 are hereby REMANDED to the agency for further
processing in accordance with the Order below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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:
Mar 5, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1The record does not indicate when appellant received the final agency
decision. Absent evidence to the contrary, we find that the instant
appeal was timely filed.