02A20011A
12-06-2002
Agency.
Steven A. Tomei v. Department of Defense
02A20011
December 6, 2002
.
Steven A. Tomei,
Grievant,
v.
Department of Defense
(Defense Contract Management Agency)<1>
Agency.
Appeal No. 02A20011
Agency No. XQ-99-005<2>
DECISION
Grievant, under a Collective Bargaining Agreement (CBA), had filed
a request to grieve and arbitrate the agency's issuance of a Notice
of Decision to remove. This appeal is from the arbitrator's decision
reversing his original decision and award, and dismissing the grievance
in its entirety for lack of subject matter jurisdiction. The appeal is
accepted pursuant to 29 C.F.R �1614.401(d). For the following reasons,
the Commission Reverses and Remands the arbitrator's final decision.
ISSUE ON APPEAL
Was grievant statutorily barred from grieving/arbitrating the matter of
his removal because of a previously filed EEO complaint?
BACKGROUND
Grievant was employed as a Mail Clerk, GS-305-3, at the Defense
Contract Management Command (DCMC), San Francisco, CA facility.
In Tomei I, grievant filed an EEO complaint on November 20, 1998,
alleging discrimination based on disability (epilepsy) and reprisal
(prior EEO activity). In his complaint, grievant specifically alleged
his supervisor: (1) consistently discussed or gave him information
about disability retirement; (2) forced him to go to the emergency room
(ER) each time he had a seizure and required a medical release after
each ER visit before he could return to work; (3) gave him a negative
performance appraisal on May 7, 1998; (4) denied him union representation
in a disciplinary meeting on May 15, 1998; (5) on August 3, 1998, sent
him home until further notice when he attempted to return to work after
having a seizure four days earlier; (6) sent him a letter dated August
3, 1998 instructing him not to return to work pending a determination
regarding the potential danger he posed to himself and others in the
workplace; (7) requested a fitness-for-duty examination for him in a
memorandum dated August 11, 1998; and (8) sent him a certified letter
of proposed removal dated September 15, 1998 indicating that he could
not perform the essential functions of his mail clerk position.
On January 25, 1999, the agency dismissed grievant's EEO complaint stating
that it was based upon a proposed personnel action. On February 24,
1999, grievant filed a timely appeal with this Commission. On February
23, 1999, the agency issued a Notice of Decision to remove, effective
March 5, 1999, which was grieved by grievant's attorney on March 4,
1999.<3> The agency raised grievability and arbitrability issues and
the arbitrator ruled, on August 30, 2000, that the matter was properly
before him on the merits. The arbitrator ruled in favor of the grievant,
ordering reinstatement with reasonable accommodations. The issue of
damages was reserved for a subsequent evidentiary hearing.<4> Meanwhile,
on February 16, 2000, the Commission had issued its decision in Tomei I,
reversing the agency's dismissal of grievant's EEO complaint.<5>
Subsequently, the agency argued before the arbitrator that by filing an
EEO complaint which raised the issue of his proposed removal, grievant
had elected the EEO process as his remedy for the removal action,
and that the arbitrator lacked jurisdiction to proceed. On March 14,
2002, the arbitrator reversed his original decision and dismissed
the grievance because of the lack of subject matter jurisdiction.
The arbitrator found that the EEOC in Tomei I had assumed jurisdiction
over the subject matter of the grievance. The arbitrator stated that
�Although it seems to contradict the statutory language about election
of remedy being conditioned solely on precedence of filing, the EEOC
decision to reverse an Agency action and �merge' a subsequent action
has the effect of retroactively giving life to, and precedence to, the
previous EEOC compliance action to the detriment of the remedy under
the grievance procedure.� This appeal followed.
CONTENTIONS ON APPEAL
Grievant contends that the arbitrator has jurisdiction over the matters
before him because: (1) they involved an actual removal subject to the
provisions of 5 U.S.C. � 7121; (2) they included matters that post-dated
the EEOC complaint and were not included in the EEOC complaint; and
(3) grievant duly elected the grievance-arbitration procedure when the
options under 5 U.S.C. � 7121 were first available to him, and when he was
informed of the options by the agency in the Notice of Decision to remove.
The agency contends that grievant is statutorily barred from
grieving/arbitrating the matter of his removal because he had first
filed an EEO complaint which constituted his election of that remedy
for the matter.
ANALYSIS AND FINDINGS
The Commission's regulations provide that a grievant may appeal to
the Commission from a final decision of the agency, the 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. 29 C.F.R. � 1614.401(d).
Further, the Commission's regulations, in conjunction with 5 U.S.C. �
7121 (d), provide that where a grievance procedure permits an allegation
of discrimination to be raised and considered, an employee wishing to
raise an allegation of discrimination must elect the forum in which to
pursue the matter. 29 C.F.R. � 1614.301(a). Under these circumstances,
a complaint of alleged employment discrimination may be raised under
either the EEO statutory process or the negotiated grievance procedure,
but not both. Id. An employee is deemed to have exercised his option
to pursue either an EEO complaint or a grievance at such time as the
employee either timely initiates an action under the EEO complaint process
or timely files a grievance in writing, whichever event occurs first.
5 U.S.C. � 7121(d).
On September 11, 1998, grievant's EEO representative had notified the
agency that she was filing an EEO complaint on behalf of grievant.
On September 15, 1998, the agency's Notice of Proposed removal was sent
to grievant stating that grievant's medical condition precluded him from
performing the essential functions of his position without endangering
his health and safety. The Notice also provided that grievant may
submit affidavits or other evidence to show why the proposed action
should not be taken, and that no decision to remove grievant had been
made nor would be made until after the time allowed for his reply.
On November 18, 1998, grievant's EEO complaint was finalized and filed.
The Tomei I EEO discrimination complaint contained references to past
harassment, continuing harassment, and retaliation for hiring a lawyer
to assert grievant's rights as a disabled individual. On January 25,
1999, the agency issued its final agency decision (FAD) dismissing
the complaint, and characterizing it as based on physical disability
(epilepsy) and reprisal when �On September 15, 1998 you were notified
by certified mail that the agency was proposing to remove you from
your position of Mail Clerk, GS-305/3.� The agency stated that it
was dismissing the complaint pursuant to EEOC Regulation 29 C.F.R. �
1614.107 (a)(5) which authorizes dismissal of a complaint that alleges
that a proposal to take a personnel action is discriminatory. The FAD
stated that grievant was still an employee and that there had not been a
decision on the proposed action. The FAD did not discuss the seven other
allegations raised by the complaint. In the FAD grievant was only advised
of his right to file a notice of appeal with EEOC. On February 24, 1999,
grievant filed his Notice of Appeal to the Commission disagreeing with
the FAD.
On February 23, 1999, the agency issued its Notice of Decision to remove,
which was received by grievant on February 25, 1999. The Notice of
Decision to remove stated that the reason for the decision was because
grievant's medical condition precluded him from performing the essential
functions of his position. The Notice advised grievant that he had the
right to initiate any one of the following procedures in response to the
removal: (a) grieve under the Negotiated Grievance Procedure; (b) appeal
to the Merit Systems Protection Board (MSPB); or (c) if applicable, file
a complaint of discrimination. Thereafter, grievant requested that the
agency reconsider the Notice of Decision to remove, and on March 4, 1999,
grievant's attorney gave notice to grieve and arbitrate the decision.
Grievant was removed from his position on March 5, 1999.
The thrust of the agency's argument is that Tomei I established
complainant's EEO complaint as one seeking relief from a personnel matter,
i.e., removal. The Commission has held that when a complaint is filed
on a proposed action and the agency proceeds with the action during
the pendency of the complaint, a �merger� between the proposal and the
action results. This principle has been discussed in cases in which the
Commission is analyzing whether there was untimely counselor contact or
whether complainant is an "aggrieved" employee within the meaning of EEOC
Regulations. See Siegel v. Department of Veterans Affairs, EEOC Request
No. 05960568 (October 10, 1997); Charles v. Department of the Treasury,
EEOC Request No. 05910190 (February 25, 1991); Lewis v. Department of
the Interior, EEOC Request No. 05900095 (February 6, 1990). While the
principle was referenced in Tomei I, the Commission has also held that
if a proposed action is combined with other acts of harassment to form
an alleged pattern of harassment, the agency may not properly dismiss
the complaint as a proposed action. See Suttles v. United States Postal
Service, EEOC Request No. 05970496 (April 8, 1999).
The gravamen of the complaint in Tomei I was an harassment claim.
The agency, instead of examining grievant's EEO complaint in Tomei I as
a whole and determining what exactly grievant was alleging, addressed
only one allegation in the complaint, i.e., the proposed removal.
By utilizing this approach the agency was able to dismiss the complaint
and ignored the issue that was the core of grievant's allegations.
We note that an agency is not permitted to dismiss claims fairly raised
by a complaint simply by defining the claim in the narrowest manner.
See White v. United States Postal Service, EEOC Appeal No. 01953382
(September 01, 1995); Tarver v. Department of the Treasury, EEOC Appeal
No. 01942924 (April 21, 1995); Rosso v. Department of the Air Force,
EEOC Appeal No. 01A05061 (December 4, 2001); Smith v. Department of
the Air Force, EEOC Appeal No. 01985397 (May 6, 2000). Basically,
the agency identified a single incident, characterized the matter as a
personnel claim, and ignored the fact that the grievant was alleging a
pattern of harassment. See Tomei, supra, at FN 6.
Additionally, we note that an agency is precluded from taking a general
claim of harassment alleging a hostile environment and dismissing it
without any inquiry into the individual incidents that make up the claim.
See Smith v. United States Postal Service, EEOC Appeal No. 01A12712
(June 20, 2001). And an agency may not pick and choose allegations,
but must consider the complaint in its entirety in order to determine
the claim or claims raised. See Foster v. Department of the Navy,
EEOC Appeal No. 01962504 (May 01, 1998). In dismissing grievant's EEO
complaint, the agency ignored seven allegations alleging a harassment
claim, selected one fact allegation concerning a proposed action,
determined that one allegation to be the grievant's claim, and then
dismissed the entire complaint. This was improper.
After reviewing the EEO counselor's report, the grievant's statement
filed with his EEO complaint, the formal EEO complaint, and our decision
in Tomei I which stated that �even if complainant was not terminated
from his position, we would not have considered his claim a proposed
action�, we find that the agency did not properly define the grievant's
EEO complaint. See Phillips v. Department of the Navy, EEOC Appeal
No. 01974075 (January 27, 1998).
The issue before the Commission in the instant appeal is whether
the matter in the EEO complaint was the same matter raised in the
negotiated grievance procedure. See Love v. Department of the Army,
EEOC Request No. 05900872 (October 04, 1990) (Commission denied a
Request for Reconsideration when the agency failed to demonstrate that
the matter raised in the EEO complaint and the grievance concerned
identical matters). We recognize that once there has been an election
of a forum, a party is foreclosed from subsequently raising the same
matter in another forum. Id.
A review of the record supports a finding that grievant did not raise
the same matter in both forums. The grievant in the EEO matter raised a
harassment claim, while in the grievance procedure, the grievant grieved
a personnel action. See Carrie J. Timus v. Department of Labor, EEOC
Appeal No. 01882180 (June 17, 1988) (Remanding a complaint to an agency
pursuant to a decision and order by a federal District Court which found
that an EEO complaint and grievance, both filed by the complainant, did
not concern identical matters); Barber v. Social Security Administration,
EEOC Appeal No. 02950009 (August 6, 1997) (Affirming an arbitrator's
decision which dismissed a grievance when the earlier filed EEO matter
and the grievance matter was the same i.e., disciplinary action).
Also, the grievant in accordance with the Commission's regulations, in
conjunction with 5 U.S.C. � 7121 (d), is provided an election as to the
forum in which to pursue a claim. 29 C.F.R. � 1614.301(a). The grievant
by filing his EEO harassment complaint did not clearly make an election
under the provisions of 5 U.S.C. � 7121 as to his personnel action.
We find Merit Systems Protection Board (MSPB) decisions instructive in
this regard. The MSPB, in reviewing 5 U.S.C. � 7121, has held that an
appeal may be dismissed for lack of jurisdiction if an appellant elects
to file a grievance before filing an appeal with the Board, if such
election is made after the effective date of the appealable action.
See Nelson v. Department of the Treasury, 58 M.S.P.R. 464 (August 11,
1993); Sylvester v. Veterans Administration, 34 M.S.P.R. 215, 216 (June
30, 1987) ("No election under section 7121(d) or (e) can occur before the
effective date of the appealable action."); Riddick v. Office of Personnel
Management, 27 M.S.P.R. 590 (August 19, 1985) (Inasmuch as no appeal
to Merit Systems Protection Board may be filed until the effective date
of appealable action, an appellant has no option other than negotiated
grievance system prior to that date, and thus can make no election
between the grievance system and appeal to the Board until that time);
Landsiedel v. Department of the Air Force, 89 M.S.P.R. 256, (August 15,
2001). The grievant was not statutorily barred from grieving/arbitrating
the personnel action because the previously filed EEO complaint alleging
harassment was a different matter. The Agency's issuance of the Notice
of Decision to remove did not retroactively convert the harassment claim
into a personnel action for the purposes of defeating grievant's timely
election of the grievance procedure to grieve his removal.
Furthermore, at the time of the filing of the EEO complaint, grievant did
not have a choice to elect the grievance procedure, and was only advised,
properly so, of his grievance rights after his removal.
We find that the arbitrator improperly dismissed the grievance.
CONCLUSION
Therefore, after a careful review of the record, including grievant's
arguments on appeal, the agency's response, and arguments and evidence
not specifically discussed in this decision, the Commission reverses and
remands the matter to the agency in accordance with this decision and the
Order below. The Commission agrees with the parties and the arbitrator
that there are obvious economies to be realized if the same arbitrator,
on remand, is requested to continue to arbitrate.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848, Washington,
D.C. 20036. 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).
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 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), 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 (R0900)
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 (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
December 6, 2002
Date
1 The case was previously with the Defense
Logistics Agency (DLA). In 2000, Defense Contract Management Agency
(DCMA) became a separate agency from DLA.
2 In Tomei v. Department of Defense, EEOC No. 01992938 (February 16,
2000) (Tomei I) it was noted that in a letter dated March 23, 1999,
the agency changed the agency case number from XQ-98-021 to XQ-99-005.
3 Grievant's EEO representative, his union president, had not received
and did not know that the Notice of Decision to remove had been sent
to grievant.
4 The hearing was held but an award of damages was not entered.
5 The EEO complaint was not amended to include the Notice of Decision
to remove.