01992143
10-13-1999
Arthur Richman, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Arthur Richman, )
Appellant, )
)
v. ) Appeal No. 01992143
) Agency No. 98-4474
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
The Commission finds that the agency's December 17, 1998 decision
dismissing appellant's complaint pursuant to the provisions of 29 C.F.R
�1614.107(d) is proper.
The EEO Counselor's Report shows that appellant sought EEO counseling
on April 13, 1998, alleging that he had been discriminated against when
he was not selected for the Medical Administration Specialist position
advertised under Announcement No. 98-08LG.
The record shows that on May 27, 1998, appellant filed a grievance
alleging that he had not been selected for promotion to the position of
Medical Administration Specialist, GS-301-5/6/7, Announcement No. 98-08LG.
The record further shows that Article 42, Section 3, of the agency's
collective bargaining agreement permits allegations of discrimination,
and specifically provides that allegations of discrimination may be filed
under the statutory procedure or the negotiated grievance but not both.
On May 28, 1998, appellant filed a formal complaint of discrimination
alleging that he had been discriminated against on the bases of race,
color, sex, age, and reprisal when the agency failed to promote him
on April 8, 1998, to the Medical Administration Specialist position
advertised in Announcement No. 98-08LG.
The agency issued a final decision dismissing the complaint on the
grounds that the issue raised in the complaint had been also raised in
a prior negotiated grievance.
EEOC Regulation 29 C.F.R. �1614.107(d) provides that an agency shall
dismiss a complaint or portion of a complaint where the complainant
has raised the matter in a negotiated grievance procedure that permits
allegations of discrimination.
In the instant case, the record shows that appellant filed a grievance
regarding non-selection for a Medical Administration Specialist position.
Additionally, the record shows that the terms of the agency's collective
bargaining agreement provide that employees have the right to raise
matters of alleged discrimination under the statutory procedure or the
negotiated grievance procedure, but not both. As the record indicates
that appellant elected to pursue the matter of the non-selection within
the grievance procedure, The Commission determines that the matter
raised in the instant complaint was properly dismissed pursuant to 29
C.F.R. �1614.107(d). Accordingly, the final agency decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
October 13, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations