0220120002
04-09-2013
Agency.
Curtis E. McCurn,
Grievant,
v.
Chuck Hagel,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.
Appeal No. 0220120002
Agency No. FMCS09090360519A
DECISION
Grievant filed an appeal with this Commission from the decision of an Arbitrator dated May 21, 2010.
At the time of events giving rise to this complaint, Grievant worked as a Materials Examiner and Identifier at the Agency's Defense Reutilization and Marketing Services facility in Stockton, California.
Grievant was removed from his position, effective July 9, 2009, for driving on to the military post in a vehicle containing an illegal drugc (marijuana) and a switch blade knife, being Absent Without Leave (AWOL), and receiving a positive finding on a drug test. He filed a grievance on his removal.
On May 21, 2010, an Arbitrator issued a decision on the matter, upholding the removal. Of note, the Arbitrator found that none of the individuals named by Grievant as comparators receiving lesser discipline were cited for possession of a weapon and an illegal drug, "so the circumstances are not comparable."
On December 7, 2011, Grievant filed an appeal from the Arbitrator's decision with the Merit Systems Protection Board (MSPB). Therein, Grievant raised, among other things, discrimination claims. The matter was docketed with the MSPB as CB-7121-12-0006-V-1.
Grievant filed the instant appeal with this Commission on December 14, 2011. In his brief, Grievant asserts he inquired about his discrimination claims with his union representative, but was told to resign from his position and then to reapply rather than dispute the charges against him. Complainant never contacted an EEO counselor nor did he file an EEO complaint on the matter.
We take judicial notice that on February 22, 2013, the MSPB issued a decision on the matter. The MSPB found that Grievant did not show that the individuals to whom he compared himself were similarly situated to him. The MSPB specifically found that Grievant did not show that his removal was tainted by discrimination or that the Agency took actions as a pretext for discrimination. His removal was upheld.
Pursuant to EEOC Regulation 29 C.F.R. � 1614.401(d), a grievant may not appeal to the Commission when the matter initially raised in a negotiated grievance procedure "is appealable to the MSPB..." In the instant case, Grievant appealed the Arbitrator's decision to the MSPB. As such, he may not now appeal it to the Commission. Further, there is no record of Grievant appealing the MSPB decision to the Commission.
Accordingly, Grievant's appeal is DISMISSED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Grievant 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), at 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 77960, Washington, DC 20013. 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).
GRIEVANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
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. 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
April 9, 2013
__________________
Date
2
0220120002
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0220120002