Christopher Jenkins, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionNov 28, 2000
01A04031 (E.E.O.C. Nov. 28, 2000)

01A04031

11-28-2000

Christopher Jenkins, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Christopher Jenkins v. Department of the Navy

01A04031

November 28, 2000

.

Christopher Jenkins,

Complainant,

v.

Richard J. Danzig,

Secretary,

Department of the Navy,

Agency.

Appeal No. 01A04031

Agency No. DON (MC) 000-00263-004

DECISION

Complainant filed a timely appeal with this Commission from an agency's

decision dated April 26, 2000, dismissing his complaint of unlawful

employment discrimination brought pursuant to 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 29 C.F.R. � 1614.405.

According to the record, on May 27, 1999, the agency issued complainant

a proposed seven-day suspension due to customer complaints received

regarding his service. Complainant filed a grievance with the Union

regarding this suspension, which was denied at �Step-3" on September

13, 1999.

During the course of this grievance process, complainant was issued a

proposed fourteen-day suspension on August 17, 1999, again regarding

customer complaints. Complainant did not file a written grievance

regarding the fourteen-day suspension. However, the Union president

and a Union representative contacted management officials in an effort

to begin the grievance process, and to formally settle the dispute.

However, when complainant failed to engage in the settlement effort

or the grievance process, the agency issued its decision to suspend

complainant for fourteen days on January 12, 2000.

Complainant contacted an EEO Counselor on February 24, 2000, contending

that the agency was trying to remove him from his position as the only

remaining black worker at his facility. Complainant additionally claimed

that the co-worker and customer complaints were not legitimate, and that

the same complaints were being used to justify the fourteen-day suspension

that were used to justify the seven-day suspension. Complainant filed a

formal complaint on April 10, 2000, claiming race discrimination regarding

the fourteen-day suspension.

The agency dismissed the complaint, finding that complainant filed a

written grievance regarding the fourteen-day suspension, thereby electing

to pursue the matter in that forum. The agency's decision also noted that

complainant could not negate this election by withdrawing his grievance.

On appeal, complainant restated his position as set forth in the

EEO Counselor's Report and formal complaint. In response, the agency

acknowledges that complainant did not file a written grievance regarding

the fourteen-day suspension, but argues that e-mails between management

officials and Union officials; the settlement attempt; and a January 28,

2000 meeting between complainant's Union representative and a management

official, are all evidence that complainant elected to pursue this matter

in the grievance process.

The regulation set forth at 29 C.F.R. � 1614.107(a)(4) provides that

an agency may dismiss a complaint where the complainant has raised

the matter in a negotiated grievance procedure that permits claims

of discrimination. Here, 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. However, after carefully reviewing

the record, we find that complainant elected to raise the instant claim

in the EEO process, and not in the grievance process.

Although it is true that the Union president, and a Union representative,

contacted management regarding the fourteen-day suspension, there is no

indication that they were doing so with complainant's authorization for

them to act on his behalf. In fact, management's February 15, 2000

e-mail to the Union president regarding the January 28, 2000 meeting

reflects that the Union representative at this meeting could not provide

documentation that complainant had designated him as his representative.

Furthermore, this e-mail reflects that this �representative� was unable

to obtain any of the information necessary to proceed with the grievance

process. The last two lines of the e-mail read as follows:

Regardless, over 30 days in all have past (sic) and I still have

nothing from [complainant]. If [complainant] intends to proceed with

this grievance then I expect to receive his written statement soon or

at least be informed of any reasons for further delay.

Based on this statement, coupled with the fact that the record does not

reflect that complainant filed a written grievance or designated a Union

representative, we find that complainant had no intention to elect the

grievance process to address the fourteen-day suspension. Consequently,

he could not have withdrawn from the grievance process, as also claimed

by the agency, because he never initiated, authorized or participated in

this grievance process. Similarly, regarding the settlement attempt,

we note that the record is devoid of any indication that complainant

agreed to mediate this matter, and he appears to have played no part in

the settlement attempt.

On the other hand, complainant's intention to elect the EEO forum is

reflected in his October 6, 1999 letter to the General Commander, which

he wrote after receiving the proposed fourteen-day suspension, wherein

complainant states his belief that the agency's disciplinary actions were

racially motivated. Complainant then followed up on this intention when

he initiated timely EEO Counselor contact after the agency acted on the

proposal and issued the decision to suspend him for fourteen days.

Accordingly, the agency's final decision dismissing the instant complaint

is REVERSED. The complaint is hereby REMANDED for further processing

in accordance with the Order below.

ORDER (E0900)

The agency is ordered to process the remanded claims in accordance with

29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant

that it has received the remanded claims within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue

to complainant a copy of the investigative file and also shall notify

complainant of the appropriate rights within one hundred fifty (150)

calendar days of the date this decision becomes final, unless the matter

is otherwise resolved prior to that time. If the complainant requests a

final decision without a hearing, the agency shall issue a final decision

within sixty (60) days of receipt of complainant's request.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)

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 complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement of

the order. 29 C.F.R. � 1614.503(a). The complainant 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 complainant 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)(Supp. V 1993). If the

complainant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 (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

November 28, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.