0220140015
11-17-2015
Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Tommy C.,1
Grievant,
v.
Thomas E. Perez,
Secretary,
Department of Labor,
Agency.
Appeal No. 0220140015
Agency No. ARBLESA0013069
DISMISSAL OF APPEAL
On September 2, 2014, Grievant filed an appeal with this Commission from the August 4, 2014 Arbitration Award concerning his union grievance alleging a violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
On January 16, 2013, Grievant filed his Step 1 grievance regarding his termination from the Agency during his probationary period. In his grievance, Grievant alleged that the Agency's action constituted disability discrimination in violation of the Rehabilitation Act. On February 12, 2013, the Step 1 grievance was denied by the Agency. Subsequently, on April 26, 2013, a Step 2 grievance decision was also issued, upholding the termination.
On behalf of Grievant, the Union pursued the matter before an arbitrator (Arbitrator). On May 2, 2014, the Arbitrator issued a decision, denying the grievance. The Arbitrator determined that probationary employees, like Grievant, did not have the right to grieve termination decisions made by the Agency. As such, the Arbitrator found the grievance to be "not grievable or arbitrable," essentially dismissing the arbitration for lack of jurisdiction. The Union requested reconsideration of the Arbitrator's decision. The request for reconsideration was denied on August 4, 2014. This appeal followed.
EEOC Regulation 29 C.F.R. �1614.401(d) states that a grievant may appeal the final decision of the agency, an arbitrator, or the Federal Labor Relations Authority (FLRA) on a grievance when an issue of employment discrimination was raised in a negotiated grievance procedure that permits such issues to be raised.
As noted above, the Arbitration decision dismissed Grievant's arbitration based on language contained within the negotiated grievance process that limited access to the process by probationary employees. In this regard, we find that the Arbitration decision is binding. Our regulations do not provide us with appellate authority over issues of contractual interpretation rather than claims of discrimination.
We note that Grievant contacted the Agency's EEO office regarding the termination action in order to raise his claim of unlawful discrimination. However, the Union had already proceeded with the grievance and Complainant was advised that an election to use the grievance process to address his discrimination claim had been made. Now, we find that because the grievance process did not address Grievant's claim of disability-based discrimination (as a result of the jurisdictional dismissal by the Arbitrator), the Agency should now process Complainant's allegation of discrimination through the EEO complaint process. We find this situation is analogous to when a complainant has filed an appeal with the Merit Systems Protection Board (MSPB) raising a claim of discrimination and the MSPB then dismisses the appeal for jurisdictional reasons. See 29 C.F.R. �1614.302(b).
The Agency should notify Grievant of the right to seek EEO counseling and should process the matter pursuant to 29 C.F.R. � 1614.105 et seq. The date on which the initial grievance was filed shall be considered the date of initial contact with the EEO counselor.
CONCLUSION
Accordingly, Grievant's September 2, 2014 appeal is hereby DISMISSED and the matter is REMANDED to be processed with the 29 C.F.R. Part 1614 process in accordance with the ORDER below.
ORDER (E0610)
Within thirty (30) calendar days of the date this decision becomes final, the Agency shall notify Complainant in writing of his right to seek EEO counseling on his termination. In its notice, the Agency shall provide Complainant with appropriate EEO contact information and thirty (30) calendar days from receipt of the notice to make the contact. If Grievant seeks EEO counseling in response to the notice and later files a formal complaint, the Agency shall process the complaint in accordance with 29 C.F.R. � 1614.106 et seq.2
A copy of the Agency's notice of right to seek EEO counseling, as well as the notice of right to file a formal complaint if Complainant requests counseling, must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Grievant. If the Agency does not comply with the Commission's order, the Grievant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Grievant 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 Grievant 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 Grievant 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 (M0815)
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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (R0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Grievant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
November 17, 2015
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Grievant's name when the decision is published to non-parties and the Commission's website.
2 If Complainant files a formal complaint, for accept/dismiss purposes, the date of initial EEO contact will be construed as the date the grievance was originally filed.
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