0120070584
02-21-2007
Curtis Sayles, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Curtis Sayles,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120070584
Agency No. 05-62204-02225
Hearing No. 480-2006-00250X
DECISION
Complainant filed a timely appeal with this Commission from a final order
concerning his equal employment opportunity (EEO) complaint claiming
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405.
During the relevant time, complainant was employed as a Paint Helper,
WG-4102-05, at the agency's Cost Work Center 749, Maintenance Center,
Marine Corps Logistics Base, Barstow, California. On July 7, 2005,
complainant initiated contact with an EEO Counselor. Informal efforts
to resolve his concerns were unsuccessful.
On October 28, 2005, complainant filed the instant formal complaint.
Therein, complainant claimed that he was subjected to discrimination
on the bases of race (African-American), age (D.O.B. 6/22/56), color
(black) and in reprisal for prior EEO activity when:
(a) on October 14, 2004, he was subjected to racial slurs when his
supervisor approached him and a co-worker and told the co-worker to
"jump up there and fix the door." Complainant felt that the reason the
supervisor made that comment was because in his mind he took it as the
supervisor insinuating that "all black people can jump, after all it
was basketball season;"
(b) on March 31, 2005, May 4, 2005 and May 10, 2005, he was not
selected for the following positions: Painting Worker WG4102-07
SW4102-05-227548-DE; Painter WG4102-09 SW4102-05-228554-DE; and Painter
Worker WG4102-07 SW4102-05-228547-DE;
(c) in May 2005, his supervisor assigned him work without any assistance
while the supervisor provided assistance to his co-workers to accomplish
their tasks and allow his co-workers to stand around doing nothing; and
(d) on October 25, 2005, he was suspended for three days for misconduct. 1
On May 25, 2006, the agency issued a partial dismissal.2 The agency
accepted claim (d) for investigation. The agency dismissed claims (a) -
(c) pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds of untimely
EEO Counselor contact. The agency also dismissed claim (c) pursuant to
29 C.F.R. � 1614.107(a)(1) for failure to state a claim.3
At the conclusion of the investigation of claim (d), complainant received
a copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). The agency thereafter filed a motion
to dismiss claim (d).4
The record supports a finding that, in its motion, the agency requested
that the AJ dismiss claim (d) pursuant to 29 C.F.R. � 1614.107(a)(4)
on the grounds that it addresses the same matter that was raised in a
negotiated grievance procedure that permits claims of discrimination.
The record further reflects that the agency stated that complainant filed
a Step 1 grievance concerning his 3-day suspension for misconduct.
On September 26, 2006, the AJ granted the agency's motion to dismiss claim
(d). Specifically, the AJ found that on October 27, 2005, complainant
filed Step 1 grievance concerning his 3-day suspension. The AJ further
found that on October 28, 2005, complainant filed the instant formal
EEO complaint. The AJ determined that because complainant first elected
to file a grievance concerning his 3-day suspension before filing his
formal complaint, claim (d) must be dismissed pursuant to 29 C.F.R. �
1614.109(b).
On November 9, 2006, the agency issued a final order implementing the
AJ's dismissal of claim (d).
On appeal, complainant argues that when he pursued the EEO complaint
process relating to the 3-day suspension, his telephone calls to the
agency's EEOC office in Barstow were repeatedly ignored. Complainant
states "I also mentioned in my formal complaint that I was misrepresented,
misguided and my character was defamed by [a named EEOC Officer at the
agency's Barstow EEOC office]."
EEOC Regulation 29 C.F.R. � 1614.301(a) states that when a person is
employed by an agency subject to 5 U.S.C. 7121(d) and is covered by a
collective bargaining agreement that permits claims of discrimination
to be raised in a negotiated grievance procedure, a person wishing
to file a complaint or grievance on a matter of alleged employment
discrimination must elect to raise the matter under either part 1614
or the negotiated grievance, but not both. An aggrieved employee who
files a grievance with an agency whose negotiated agreement permits the
acceptance of grievance which allege discrimination may not thereafter
file a complaint on the same matter under this part 1614, irrespective
of whether the agency has informed the individual of the need to elect
or whether the grievance has raised an issue of discrimination.
The record in the instant case contains a copy of Step 1 grievance filed
by complainant dated October 27, 2005 concerning the 3-day suspension
for misconduct. The record also contains a copy of the "Article II:
Grievance Procedure." Therein Section 3 provides that "the following
actions may be filed under the statutory appeal procedure or the
negotiated grievance procedure, but not both. a. Performance based
actions under 5 U.S.C. 4303. b. Adverse actions under 5 U.S.C. 7512.
c. Discrimination under 5 U.S.C. 2302(b)(1)."
Because complainant filed his grievance through the union before he filed
his formal EEO complaint, we find that he elected the grievance process.
The Commission determines that the AJ properly dismissed claim (d) on
the grounds that complainant raised the matter in a negotiated grievance
procedure that permits allegations of discrimination pursuant to 29
C.F.R. � 1614.107(a)(4).
Finally, regarding complainant's assertion on appeal relating to the
purported actions of a named agency EEO employee, complainant is advised
to contact the agency EEO Director on this matter if he wishes to pursue
it further.
Accordingly, the agency's final order implementing the AJ's dismissal
of claim (d) is AFFIRMED.
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
February 21, 2007
__________________
Date
1 For ease of reference, the Commission has re-lettered complainant's
claims as claims (a) - (d).
2 In its partial dismissal, the agency inadvertently referred to the date
that complainant filed the formal complaint as "28 Oct 06," instead of
as October 28, 2005.
3 There is no indication that in the record that complainant challenged
the agency's partial dismissal of claims (a) - (c). Therefore, we will
not address these claims in this decision.
4 The record does not contain the agency's motion to dismiss claim (d).
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0120070584
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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