Cecil Wear, Complainant,v.Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity CommissionMar 13, 2003
02A20012 (E.E.O.C. Mar. 13, 2003)

02A20012

03-13-2003

Cecil Wear, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.


Cecil Wear v. Social Security Administration

02A20012

03-13-03

.

Cecil Wear,

Complainant,

v.

Jo Anne B. Barnhart,

Commissioner,

Social Security Administration,

Agency.

Appeal No. 02A20012

Agency No. 0AR3510

DECISION

Complainant timely initiated an appeal from a decision of the Federal

Labor Relations Authority concerning his grievance regarding his sick

leave restriction and a five-day suspension. The appeal is accepted

pursuant to 29 C.F.R. � 1614.405.

ISSUE

The issue on appeal is whether the decision of the Federal Labor Relations

Authority (FLRA) presents a matter subject to the Commission's review.

BACKGROUND

The record reveals that during the relevant time, complainant was

employed as a claims clerk at the agency's Evanston, Illinois facility.

On September 20 and October 2, 1996, complainant was counseled on

a pattern of sick leave abuse. On November 26, 1996, complainant was

placed on sick leave restriction, requiring that sick leave or substituted

annual leave be supported by a medical certificate and that scheduled

appointments have prior approval. On December 5, 1996, complainant

initiated a step 1 grievance. Complainant's description of his grievance

read �sick leave restriction � discrimination.� The complainant

pursued this matter through steps 2 and 3 of the grievance process.

Complainant's grievance was denied at each step of the grievance process.

Apart from writing the word discrimination on his step 1 grievance form

no evidence showed that complainant raised a claim of discrimination as

set out in applicable statutes.<1>

On February 8, 1999, the agency suspended complainant for five days,

because complainant failed to follow proper procedures for requesting

and obtaining approved leave which resulted in a charge of 115 � hours

absence without leave. Complainant grieved the suspension through steps

1-3 of the grievance process. Complainant's grievance was denied at each

step of the process. At no time did complainant raise discrimination

as a basis of the grievance.

Both the sick leave restriction and the five-day suspension went

to arbitration on November 27, 2001, and on January 11, 2002, an

arbitrator ruled in the agency's favor. The arbitrator's decision did

not address an issue of discrimination. Complainant filed exceptions

to the arbitrator's award, and on April 18, 2002, the FLRA issued a

decision denying the union's exceptions. The FLRA decision did not

address an issue of discrimination. This FLRA decision is the subject

of complainant's May 17, 2002 appeal.

Neither the complainant nor the union filed an appeal brief. The agency

argued that the Equal Employment Opportunity Commission (EEOC or

Commission) lacked jurisdiction to decide a matter which did not raise

a claim of discrimination.

ANALYSIS

EEOC regulation 29 C.F.R. � 1614.401(d) provides that an appeal may

be filed from the final decision of an agency, an arbitrator, or the

FLRA on a grievance action where an issue of employment discrimination

was raised. Here, the only claim of employment discrimination was

set out on complainant's step 1 grievance form, without any evidence

or argument on employment discrimination. Where the complainant has

failed to raise a claim of employment discrimination at any stage of

the process, and where both the arbitrator and FLRA are silent on the

issue of discrimination, we conclude that complainant cannot prevail.

Begay v. Department of the Interior, EEOC Appeal No. 01981947 (Sept. 22,

1999), request to reopen denied, 05A00065 (Mar. 16, 2000) (appeal

dismissed where complainant failed to raise discrimination before

arbitrator or FLRA); Snead v. Pension Benefit Guaranty Corporation,

EEOC Appeal No. 02990004 (Mar. 25, 1999) (same).

CONCLUSION

Based on a careful review of the record, and for the foregoing reasons,

it is the decision of the Equal Employment Opportunity Commission to

dismiss the appeal.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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), 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

____03-13-03______________

Date

1 Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C �

2000e et seq., Age Discrimination in Employment Act of 1967, as amended,

29 U.S.C. � 633a; Rehabilitation Act of 1973, 29 U.S.C. � 501 et seq.,

as amended by the Americans with Disabilities Act, 42 U.S.C. � 12101

et seq., Equal Pay Act of 1963, as amended, 29 U.S.C. � 206(d); Civil

Rights Act of 1991, 42 U.S.C. � 1981 et seq.