01983608
05-24-1999
William A. Davidson, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
William A. Davidson v. Department of Veterans Affairs
01983608
May 24, 1999
William A. Davidson, )
Appellant, )
)
v. ) Appeal No. 01983608
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
______________________________)
DECISION
On April 7, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) dated March 31, 1998, pertaining
to 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. In his complaint, appellant alleged that he was subjected to
discrimination on the bases of race (African-American), gender (male),
and in reprisal for prior EEO activity when:
Appellant was admonished on March 25, 1997;
Appellant was denied an award and demoted;
Appellant's duty hours and assignments were changed on August 4, 1996;
Appellant's performance appraisal rating for 1996-1997 was lowered to
"fully successful"; and
Appellant was reprimanded on April 15, 1997.
The agency dismissed allegations (1), (2), (3), and (5) pursuant to EEOC
Regulation 29 C.F.R. �1614.107(b), for failure to bring the matters to
the attention of an EEO Counselor. The agency dismissed allegation
(4) pursuant to EEOC Regulation 29 C.F.R. �1614.107(d), for alleging a
matter previously raised in a negotiated grievance.
A review of appellant's July 4, 1997 Counselor's Report reveals that
appellant discussed the reduction of his performance appraisal rating with
the EEO Counselor; no other matter is mentioned in the Counselor's Report.
The record also contains a copy of a step one grievance, dated July 7,
1997, in which appellant and several other employees complained of unfair
treatment in their performance appraisals, and a copy of the Collective
Bargaining Agreement between the union and the agency. The Collective
Bargaining Agreement provides that allegations of discrimination may be
raised either in the EEO or grievance process, but not both.
EEOC Regulation 29 C.F.R. �1614.107(b) states, in pertinent part, that
an agency shall dismiss a complaint or portion thereof which raises a
matter that has not been brought to the attention of an EEO Counselor,
and is not like or related to a matter on which the complainant has
received counseling. A later allegation or complaint is "like or related"
to the original complaint if the later allegation or complaint adds
to or clarifies the original complaint and could have reasonably been
expected to grow out of the original complaint during the investigation.
See Scher v. United States Postal Service, EEOC Request No. 05940702
(May 30, 1995).
We find that allegations (1), (2), (3), and (5) were not brought to the
attention of an EEO Counselor. Further, allegations (1), (2), (3), and
(5) are not like or related to any matter discussed with the counselor;
appellant has presented no argument on appeal to establish any similarity
between the allegations and the matter discussed with an EEO Counselor.
Accordingly the agency's dismissal of allegations (1), (2), (3), and
(5) is AFFIRMED.
EEOC Regulation 29 C.F.R. �1614.301(a) states 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 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. An aggrieved employee who files
a grievance with an agency whose negotiated agreement permits the
acceptance of grievances which allege 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 whether the grievance has raised an issue of discrimination.
The collective bargaining agreement between appellant's union and
the agency requires appellant to raise his discrimination allegations
either through an EEO complaint, or through a grievance, but not both.
Appellant raised allegation (4) in a July 7, 1997 grievance, prior to
filing his August 18, 1997 formal complaint. Accordingly, the agency's
decision to dismiss allegation (4) is AFFIRMED.
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 (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. 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 (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:
May 24, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations