Agency.

Equal Employment Opportunity CommissionDec 6, 2002
02A20011A (E.E.O.C. Dec. 6, 2002)

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.