05980394
11-01-2000
William James Jr., Complainant, v. J. Brian Atwood, Administrator, Agency for International Development, Agency.
William James Jr. v. Agency for International Development
05980394
November 1, 2000
.
William James Jr.,
Complainant,
v.
J. Brian Atwood,
Administrator,
Agency for International Development,
Agency.
Request No. 05980394
Appeal Nos. 01970405, 01974753
Agency No. EOP-96-13
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in William
James Jr. v. Agency for International Development, EEOC Appeal
Nos. 01970405 and 01974753 (January 23, 1998).<1> EEOC Regulations
provide that the Commission may, in its discretion, reconsider any
previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
Complainant filed a formal EEO complaint on June 7, 1996, wherein he
alleged he was discriminated against on the bases of age (54), color
(Black), race (African-American), and sex (male). On September 16,
1996, the agency issued its first final decision (FAD-1) accepting six
of complainant's claims and dismissing the remaining eighteen claims.
On December 23, 1996, the agency issued a second final decision (FAD-2)
dismissing all of complainant's claims, including those it initially
accepted for investigation. In FAD-2, the agency found that complainant
filed a grievance with the Foreign Service Grievance Board (FSGB) on March
29, 1996, regarding all the matters in his complaint. As such, the agency
found complainant had elected, pursuant to 29 C.F.R. � 1614.301(a), to
pursue the matter under the negotiated grievance procedure. In support
of its dismissal, the agency relied on Volume 3, Foreign Affairs Manual,
(FMA) 010, Appendix A, Section 1109(b)(1) and stated that the referenced
provision provides that:
[w]ith respect to a grievance based on an alleged violation of law, rule,
regulation, or policy directive referred to in section 1101(a)(1)(h),
a grievant may either (A) file a grievance under this Chapter, or
(B) initiate in writing a proceeding under another provision of law,
regulation or Executive Order that authorizes such relief, but not both.
The agency also noted in FAD-2 that the FMA contains regulations
governing Foreign Service Officers and provides guidance for Foreign
Service Officers who believe they have been subjected to discrimination.
The prior decision affirmed the agency's dismissal of the complaint
pursuant to 29 C.F.R.�1614.107(d), which provides in pertinent part that
an agency shall dismiss a complaint or a portion of a complaint where a
complainant has raised the matter in a negotiated grievance procedure
that permits allegations of discrimination. The prior decision found
that complainant filed his formal EEO complaint in June 1996. However,
he had previously filed a grievance in March 1996 and later amended
that grievance, including all issues raised in his EEO complaint.
Furthermore, the previous decision found that the grievance procedure
permits allegations of discrimination. Accordingly, the decision found
that when complainant filed the grievance, he elected to pursue the
negotiated grievance procedure, and therefore, we affirmed the dismissal
of the complaint.
In his request, complainant argues that the FSGB ruled that complainant's
grievance may not address any issues of discrimination, or any issues
raised in complainant's EEO complaint. At the same time, however,
the agency rejected the EEO complaint because complainant raised the
matter within the negotiated grievance procedure. As such, complainant
argues he is without a forum in which to address his allegations of
discrimination.
As an attachment to his Request, complainant also submits an �Order &
Summary of Proceedings,� dated November 3, 1997, of the FSGB. Therein,
it ordered the following:
The issue which will be heard by this Panel is the agency's decision to
separate grievant....Matters that will not be considered and therefore
are not part of the discovery process, include issues of discrimination
based on age, color, handicap, national origin, sex, race, religion and
retaliation/reprisal, all items raised by grievance in his discrimination
complainant...
Complainant also reports in his request that he informed the FSGB of our
prior decision in the hopes that the FGSB would review its decision.
In the event the Board overturned its November 3, 1997, decision,
complainant stated that he would request the withdrawal of the instant
request. Complainant also notes that in the event that the FSGB sustained
its earlier decision, complainant would be without a forum to address
his allegations of discrimination.
In response to complainant's request, the agency argues that the prior
decision correctly dismissed complainant's EEO complaint because he
elected to pursue the negotiated grievance procedure. Complainant's
argument, the agency states, is properly with the FSGB, which failed to
address complainant's issues of discrimination. The agency cites Foreign
Affairs Regulations which require the FSGB to consider discrimination
matters. Should the FSGB continue to deny complainant the opportunity
to present his allegations of discrimination, complainant should appeal
the decision to the Commission. The agency argues it would be improper
for us to reconsider a decision that properly dismissed complainant's
EEO complaint.
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is
the decision of the Commission to deny the request. Complainant failed
to establish that the prior decision involved a clearly erroneous
interpretation of material law or fact.
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 claims 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. Complainant elected to pursue the grievance procedure,
and therefore cannot file an EEO complaint on the same matter. We agree
with the agency that complainant's recourse lies with the FSGB if they
refused to hear complainant's claims of discrimination. We note for the
record that complainant failed to produce the FSGB's final decision for
his grievance. Rather, we only have an order describing the issues to be
addressed during discovery. The prior decision correctly found, based on
the documentation in the record at that time, that the complaint should
be dismissed pursuant to 29 C.F.R.� 1614.107(d). The decision in EEOC
Appeal No. 01970405 and 01974753 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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. 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.
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
November 1, 2000
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.