01A2132102A10002
08-11-2003
Roger Payne, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Roger Payne v. Department of Justice
01A21321 & 02A10002
August 11, 2003
.
Roger Payne,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal Nos. 01A21321 & 02A10002<1>
Agency Nos. P-98-9394 & P-2000-0123
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeals from the agency's final decisions in the above-entitled matters.
First, in P-98-9394, complainant alleged that the agency discriminated
against him based on his race (Caucasian), national origin (Native
American), religion (Church of Christ), and reprisal for prior EEO
activity when (1) in January 1997, a medical officer and a supervisory
physician's assistant removed themselves from supervisory authority
over complainant, and (2) in April 1997, the medical officer issued
a memorandum accusing complainant of �failure to provide prescribed
analgesic and antibiotic coverage to a post-op patient.� Second, in
P-2000-0123, complainant alleged that the agency discriminated against him
based on race (Caucasian) when a health services administrator prohibited
complainant from wearing �scrubs,� a form of medical uniform, to work.<2>
Regarding P-98-9394, the agency issued a final decision, finding
no discrimination. After a review of the record in its entirety,
including consideration of all statements submitted on appeal, it is
the decision of the Equal Employment Opportunity Commission to affirm
the agency's final decision on P-98-9394 because the preponderance of
the evidence of record does not establish that discrimination occurred.
Complainant failed to establish pretext.
Regarding P-2000-0123, the agency dismissed the complaint, stating that
complainant raised the same matter in a negotiated grievance process
that permits allegations of discrimination. It is the decision of the
Equal Employment Opportunity Commission to vacate the agency's final
decision regarding P-2000-0123. Pursuant to 29 C.F.R. � 1614.301(a),
complainant elected to proceed in the administrative EEO process rather
than the negotiated grievance process when he filed a formal EEO complaint
more than two months prior to filing his union grievance. Further, the
record indicates that complainant's grievance subsequently was deemed
untimely by his representative union, so such a filing could not be
deemed as an election to proceed under a negotiated grievance procedure.
See 29 C.F.R. � 1614.301(a). Thus, the matter is remanded to the agency
in accordance with the Order below.
ORDER
If appropriate, the agency shall consolidate the remanded claim with the
claim remanded in Payne v. Dep't of Justice, EEOC Appeal No. 01A23296
(May 30, 2003). The agency is ordered to process the remanded claim in
accordance with 29 C.F.R. � 1614.108. The agency shall acknowledge to
the complainant that it has received the remanded claim 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
August 11, 2003
__________________
Date
1The Commission notes that EEOC Appeal Number 02A10002 was docketed as
an appeal related to a union grievance, in error. Instead, the appeal
is related to a formal EEO complaint.
2The Commission notes that complainant filed another complaint on October
5, 2000 and another grievance on August 11, 2000 on the same issue.
The agency issued a final decision on May 3, 2002 dismissing the
complaint pursuant to 29 C.F.R. � 1614.301(a). Complainant appealed.
In Payne v. Dep't of Justice, EEOC Appeal No. 01A23296 (May 30, 2003),
the Commission issued a decision vacating the agency's decision and
remanding the complaint for further processing because it was not clear
as to whether discrimination could be raised in the agency's negotiated
grievance process.