0220060009
02-22-2008
Agency.
Aaron Williams,
Grievant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 02200600091
Agency No. 05-03752
DECISION
Grievant appeals to the Commission from an Arbitration Opinion and Award,
dated January 6, 2006, pursuant to 29 C.F.R. � 1614.401(d). The record
indicates that grievant, a Supply Technician at the agency's Eastern
Colorado Health Care System Medical Center, alleged discrimination based
on race (Black) when he was not selected for the position of Inventory
Management Specialist, GS-2110-5.
The Arbitrator stated that under Article 42, Section 7 of the Master
Labor Agreement, an employee and/or the Union shall present the grievance
to the immediate or acting supervisor with an information copy to the
Director of the facility in writing within thirty calendar days of
the date that the employee or Union became aware or should have become
aware of the act or occurrence or anytime if the act or occurrence is
of a continuing nature. Grievant claimed that he did not receive the
written notification of his non-selection until February 2, 2005, and he
timely filed the instant grievance to the agency on February 24, 2005.
The record indicates that grievant had surgery on his ankle on December 3,
2004, and did not come back to work until January 25, 2005.
The Arbitrator noted that a selectee for the position at issue was
selected on October 19, 2004, and he actually started work in that
position, in close proximity to grievant, on October 31, 2004. Grievant
admitted that sometime before his medical leave, described above, he knew
the selectee got the job by early November 2004, since he was actually
doing the job and it was common knowledge among the workforce that he
had been selected. The agency, undisputed by grievant, also indicated
that in October 2004, grievant's supervisor made an announcement of
this selection. Based on the foregoing, the Arbitrator determined
that grievant's filing of the instant grievance on February 24, 2005,
was beyond the 30-day time limit after he knew of the non-selection in
October or early November 2004.
Accordingly, the Arbitrator's Opinion and Award dismissing the grievance
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 tends 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).
GRIEVANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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 (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
2/22/2008
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
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0220060009
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036