02a40011
11-22-2004
Douglas J. Godesky, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.
Douglas J. Godesky, v. Department of Health and Human Services
02A40011
11/22/04
.
Douglas J. Godesky,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 02A40011
DISMISSAL OF APPEAL
The record indicates that complainant elected to use the agency's
negotiated grievance procedure and requested that the union invoke
arbitration regarding his removal from employment. The record also
reveals that the collective bargaining agreement permits claims of
discrimination to be raised in the negotiated grievance procedure.
On June 11, 2004, an Arbitrator issued a decision ordering that the
agency to reinstate complainant and pay him back pay, less the sum
of a one month suspension. The Arbitrator also found that the claim
of discrimination was not timely raised with an EEO Counselor pursuant
to the requirements of the Collective Bargaining Agreement, Article 24
Section 7. On July 14, 2004, complainant filed the instant appeal to
the Commission from the Arbitrator's decision. On appeal, complainant
asks that the Commission review his appeal from the arbitrator's decision
which found untimely EEO Contact, and find discrimination.
EEOC Regulation 29 C.F.R. � 1614.401(d) provides that a grievant may
appeal the final decision of the agency, the arbitrator or the Federal
Labor Relations Authority (FLRA) on the grievance when an issue of
employment discrimination was raised in a negotiated grievance procedure
that permits such issues to be raised. A grievant may not appeal under
this part, however, when the matter initially raised in the negotiated
grievance procedure is appealable to the Merit Systems Protection Board
(MSPB). 29 C.F.R. � 1614.401(d).
The Commission has held that it has no authority to review complainant's
claims of discrimination regarding removal from the agency when the matter
was processed through the arbitration stage of the agency's negotiated
grievance procedure but was not yet reviewed by the MSPB. See Ho
v. Department of the Air Force, EEOC Appeal No. 02970021 (Dec. 22, 1997).
In such a situation a complainant is required to file an appeal with the
MSPB from the arbitrator's decision prior to seeking Commission review.
See id. (citations omitted). It is noted that complainant's November
7, 2003 removal notice informed complainant of his appeal rights, i.e.,
that he may file an appeal of his Arbitrator's decision to the MSPB, then,
he may file a petition to the Commission to consider that MSPB decision.
Accordingly, complainant's appeal to the Commission is premature at this
time and is hereby DISMISSED.
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
11/22/04
__________________
Date