Allan F.,1 Complainant,v.Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.Download PDFEqual Employment Opportunity CommissionMar 11, 20160120142020 (E.E.O.C. Mar. 11, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Allan F.,1 Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0120142020 Agency No. PHI-14-0221-SSA DECISION Upon review, we find that the Agency’s final decision dated April 17, 2014, dismissing Complainant’s complaint for raising the same matter in a negotiated grievance procedure is proper pursuant to 29 C.F.R. § 1614.107(a)(4). The record indicates that on January 6, 2014, Complainant contacted an EEO Counselor. Complainant filed a formal complaint dated February 27, 2014. Therein, Complainant alleged discrimination in reprisal for prior EEO activity when on November 21, 2013, he received a low performance appraisal. The record also indicates that on November 21, 2013, Complainant filed a grievance raising the same matter, i.e., the low performance appraisal. The record indicates that Complainant later withdrew the grievance on February 4, 2014. The Agency dismissed the instant complaint indicating that Complainant made an election to file a grievance concerning his low performance appraisal. After a review of the National Agreement between the Agency and the American Federation of Government Employees (AFGE), we find that Complainant, who was a member of the AFGE, elected to raise the same matter, i.e., his low performance appraisal he alleged in the instant complaint, in a negotiated grievance procedure that permits allegations of discrimination. 29 C.F.R. §1614.301. On 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 0120142020 2 appeal, Complainant indicates that at the time of his withdrawal of his grievance, his manager intentionally remained silent and did not alert the union steward that it was improvident to withdraw the grievance. However, upon review, other than Complainant’s mere assertions, we see no misrepresentation on the part of the manager. It is noted that there is no duty on the part of the manager to inform Complainant concerning the consequences of his voluntary withdrawal of his grievance. Complainant may however raise the validity of his withdrawal of such through a grievance procedure. Accordingly, the Agency’s final decision dismissing the complaint is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) The Commission may, in its discretion, reconsider the decision in this case if the Complainant 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). COMPLAINANT’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 0120142020 3 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 (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 Complainant’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 March 11, 2016 Date Copy with citationCopy as parenthetical citation