Bennie L. Thomas III, Complainant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionJul 27, 2000
01993379 (E.E.O.C. Jul. 27, 2000)

01993379

07-27-2000

Bennie L. Thomas III, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.


Bennie L. Thomas III v. Department of the Treasury

01993379

July 27, 2000

Bennie L. Thomas III, )

Complainant, )

)

v. ) Appeal No. 01993379

) Agency No. 99-4124

Lawrence H. Summers, )

Secretary, )

Department of the Treasury, )

Agency. )

____________________________________)

DECISION

On March 18, 1999, complainant filed a timely appeal with the Commission

from a final agency decision (FAD) pertaining to his complaint of

unlawful employment discrimination in violation of Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> The

Commission accepts the appeal in accordance with 64 Fed. Reg. 37,644,

37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).

In his complaint, complainant claims that he was subjected to

discrimination on the basis of race when he received an unfair annual

performance appraisal for the period of October 1, 1997 to September

30, 1998. In its FAD, the agency dismissed the complaint finding that it

was the same matter which complainant raised in his June 1998 grievance,

which concerned the breach of a Settlement Agreement (SA) executed to

resolve complainant's January 1996 grievance regarding a non-promotion.

Specifically, the FAD indicated that complainant's June 1998 grievance

challenged that provision in the grievance SA addressing his performance

appraisal for the period of January 1998 to April 1998, so that it was

the �same matter� as the EEO complaint claiming discrimination regarding

the October 1997 to September 1998 annual performance appraisal.

The agency therefore determined that complainant elected to use

the grievance process instead of the EEO process, and dismissed the

instant complaint. The agency further found complainant's EEO claim

was inextricably intertwined with the provisions of the grievance SA,

and that using the EEO process in this manner constituted a collateral

attack on the grievance SA.

On appeal, complainant argues that the grievance SA and his June

1998 grievance are separate from his EEO complaint. Specifically,

complainant argues that the grievance SA and the June 1998 grievance

concern a January 1996 non-promotion; and that the instant EEO complaint

concerns his October 1997 to September 1998 annual performance appraisal.

The agency did not submit a response to the appeal.

Our review of the grievance SA discloses that the provision at issue

provides that the agency agreed to promote complainant in the event

that his supervisor rated him �fully successful� during a designated

period�from January 1998 to April 1998. When his supervisor did not

provide him with a �fully successful� rating for this period, he filed the

June 1998 grievance alleging that the agency breached the grievance SA.

Subsequently, after he received his annual performance appraisal, on

October 28, 1999, he contacted an EEO Counselor claiming that it was

unfairly low because of race discrimination.

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 29 C.F.R. � 1614.107(a)(4)) provides that an agency may dismiss a

complaint where the complainant has raised the same matter in a negotiated

grievance procedure that permits claims of discrimination.

As a threshold matter, we note that the record shows that under the terms

of the agency's union agreement, employees have the right to raise matters

of alleged discrimination under the statutory procedure or the negotiated

grievance procedure, but not both, and that complainant elected to use

the grievance procedure. After careful review, the Commission determines

that the grievance SA performance appraisal was a significant factor

in assessing complainant's annual performance appraisal at issue in

his EEO complaint, because it included the SA rating period. Moreover,

we note that complainant's statement in support of his complainant, as

well as the June 1998 grievance, make reference the SA and the on-going

unfairness in the assessment of work performance, each arguing that

low evaluations are preventing complainant's promotion. Accordingly,

we find that the June 1998 grievance and the instant EEO complaint

are �inextricably intertwined� such that the agency's dismissal of the

instant complaint was proper. See Rothchild v. Department of the Navy,

EEOC Appeal No. 01985644 (December 28, 1999).

Accordingly, for the reasons stated above, we AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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 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 (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:

July 27, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to

all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply the

revised regulations found at 64 Fed. Reg. 37,644 (1999), where

applicable, in deciding the present appeal. The regulations, as

amended, may also be found at the Commission's website at www.eeoc.gov.