01992267
02-26-2001
Donald Dudley Complainant, v. Ann W. Brown, Chairman, Consumer Product Safety Commission, Agency.
Donald Dudley v. Consumer Product Safety Commission
01992267
February 26, 2001
.
Donald Dudley
Complainant,
v.
Ann W. Brown,
Chairman,
Consumer Product Safety Commission,
Agency.
Appeal No. 01992267
DECISION
Complainant claimed that he was discriminated against on the basis of
his race (Black) when:
Management bypassed Black males who were equally qualified or more
qualified than the individual selected for the Investigator/Compliance
Officer, GS-12 position in the Atlanta Office.
The individual selected for the Investigator/Compliance Officer position
has been afforded favorable treatment throughout his tenure with the
Atlanta Office.
Over the past nine years, the Chicago Office has not selected any Blacks
for twelve investigator positions that were filled by applicants from
outside the agency.
4. Complainant was not selected for a Compliance Officer, GS-12
position in Indianapolis in July 1997. A White female from outside
the agency was selected.
5. The Chicago Office has continuously denied Black males employment
opportunities in the professional ranks throughout the 25 year history
of that Office.
The record reveals that complainant filed a grievance on August 13, 1998,
pursuant to the agency's collective bargaining agreement. The grievance
addressed the agency's decision that deemed him ineligible for the
Investigator/Compliance Officer, GS-12 position in the Atlanta Office.
Complainant initiated contact with an EEO Counselor on August 27, 1998,
and filed the instant complaint on October 9, 1998. Complainant withdrew
his grievance on September 9, 1998. The agency dismissed the first claim
on the grounds that complainant elected to pursue the matter through
the negotiated grievance process. We find that claim (1) was properly
dismissed pursuant to 29 C.F.R. �1614.107(a)(4). The grievance and claim
(1) in the instant complaint both refer to complainant's nonselection
for the Investigator/Compliance Officer, GS-12 position in the Atlanta
Office. The agency's collective bargaining agreement permits claims
of discrimination to be raised via the negotiated grievance procedure.
Although complainant withdrew his grievance on September 9, 1998, the
withdrawal of his grievance does not negate his prior election of the
negotiated grievance procedure. Marsh v. Department of the Treasury,
EEOC Request No. 05910393 (August 8, 1991). Accordingly, the agency's
dismissal of claim (1) was proper.
Upon review, we find that claims (2), (3), and (5) of the instant
complaint were properly dismissed pursuant to 29 C.F.R. �1614.107(a)(1),
on the grounds of failure to state a claim. These claims do not show
how complainant was personally aggrieved. Claims (3), (4), and (5)
were also properly dismissed pursuant to 29 C.F.R. �1614.107(a)(2)
on the grounds that complainant failed to contact an EEO Counselor
in a timely manner. Complainant failed to establish that a specific
incident occurred within 45 days of his contact with an EEO Counselor.
With regard to claim (4), complainant claimed that he was not selected for
a Compliance Investigator, GS-12 position in Indianapolis in July 1997;
however, complainant did not initiate contact with an EEO Counselor until
August 27, 1998, after the expiration of the 45-day limitation period.
Accordingly, the agency's decision dismissing the complaint was proper
and is hereby AFFIRMED.
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 (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 26, 2001
__________________
Date