0120103694
02-08-2011
Dennis H. Boyle, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Dennis H. Boyle,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120103694
Agency No. ARTYAD10APR01820
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated June 1, 2010, dismissing his complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
In his complaint, Complainant alleged that the Agency subjected him to
discrimination on the bases of age1 (62 years at time of incident) when:
1. On or about March 8, 2010, Complainant was placed on a 60 Calendar
Day Performance Improvement Period (PIP).
The Agency dismissed the claim on the grounds that Complainant had
previously raised the matter in a negotiated grievance procedure.
On appeal, Complainant argues that the placement on the PIP "is only one
of many harassment tactics" used by management against him. In addition,
Complainant argues that when he filed his grievance concerning the
PIP, he did not raise an allegation of discrimination based on age.
On appeal, the Agency responds by pointing out that Complainant issued a
"clarification" to his Formal Complaint in which he stated that he was
only raising the allegation concerning the PIP and that other matters
raised in his complaint were "meant as background information to support
my complaint and should not be considered as separate issues." The Agency
further notes that it does not matter whether or not Complainant raised
age discrimination during his grievance, only that the negotiated
grievance process permits allegations of discrimination to be raised.
ANALYSIS AND FINDINGS
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 procedure, but not both. An aggrieved employee who files
a grievance with an agency whose negotiated agreement permits the
acceptance of grievances 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 shows that on March 2, 2010, Complainant filed a grievance in
which he grieved his appraisal and being placed on a PIP. On May 20,
2010, Complainant filed his Formal Complaint regarding being placed on
a PIP. In that document, as the Agency points out on appeal, Complainant
clarified that he was only raising the allegation concerning the PIP and
that other matters raised in his complaint were "meant as background
information to support my complaint and should not be considered as
separate issues." While Complainant states on appeal that he did
not raise age discrimination during the grievance procedure, as we
note above it does not matter whether age discrimination was raised or
not, what matters is that the negotiated agreement permits claims of
discrimination. A review of the record shows that the agreement does
permit claims of discrimination to be raised and hence Complainant's
arguments are without merit. We therefore AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with the
Court 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 8, 2011
__________________
Date
1 Complainant also alleged that the Agency's action was in retaliation
for filing a grievance. We note that this Commission has no jurisdiction
to address claims of reprisal for filing a grievance or engaging in the
grievance process.
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0120103694
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120103694