01986656
04-12-2000
Edward A. Comer, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Edward A. Comer, )
Complainant, )
)
v. )
) Appeal No. 01986656
Togo D. West, Jr., ) Agency No. 98-0795
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On September 4, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) pertaining to his complaint
of unlawful employment discrimination in violation of 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 with 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified at 29 C.F.R. �1614.405).
Complainant contacted the EEO office claiming he suffered discrimination
based on reprisal when:
on August 29, 1997, his reassignment to another unit (�Unit B-17B�) was
considered permanent, after he was being charged with sexual harassment.
Informal efforts to resolve complainant's concerns were unsuccessful.
Accordingly, on January 27, 1998, complainant filed a formal complaint.
On August 10, 1998, the agency issued a FAD dismissing the complaint
on the grounds that it alleged the same matter raised in the negotiated
grievance process. According to the FAD, complainant filed a grievance
on the same day he filed his EEO complaint.
The record reflects that complainant filed a grievance on January 27,
1998, requesting reassignment to a different tour in another unit.
The record contains a copy of the Step 1, Step 2, and Step 3 decisions,
all denying the reassignment. The Step 3 decision was issued on March
26, 1998. The agency has also provided a copy of the relevant portion
of the negotiated agreement, indicating that an employee must choose to
file complaint under the negotiated grievance procedure or the statutory
EEO process but not both.
On appeal, complainant argues that his complaint and grievance do not
address the same matter. Specifically, complainant argues that the
EEO complaint addresses his reassignment after he was cleared of sexual
harassment charges; and that the grievance addresses his non-selection for
an assignment (�PM position on Bldg. 172-2D�) posted on December 8, 1997.
In response, the agency contends that �careful review will show that the
matters are essentially the same and that [complainant] is attempting to
circumvent EEOC regulations....� Further, for the first time on appeal,
the agency argues that complainant's EEO Counselor contact was untimely.
Volume 64 Fed. Reg. 37,644, 37659 (1999) (to be codified and hereinafter
referred to as 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 Commission determines that the agency properly dismissed the
complaint for addressing the same matter raised in a grievance.
The complaint addresses alleged discrimination regarding complaint's
permanent reassignment to B-17B. Although the grievance concerns
a different reassignment, a �PM position on Bldg. 172-2D�, we note
that it is identical to the remedy requested by complaint in his EEO
complaint. The Commission determines that the instant EEO complaint
addresses the reassignment complainant was given; the grievance relates
to the reassignment complainant desired. Therefore, the complaint
and grievance address reassignments that are part of the same matter.
While the grievance and EEO complaint were filed simultaneously, the
Commission determines that the agency issued a decision on complainant's
grievance pre-dating the issuance of the FAD in this case. Therefore,
we find that complainant's complaint was properly dismissed on the
grounds that it addresses a matter raised in a prior grievance.
Accordingly, the agency's dismissal of the complaint was proper and
is AFFIRMED.
Because we affirm the agency's decision on the grounds addressed herein,
we find it unnecessary to address the agency's argument on appeal
regarding the timeliness of complainant's EEO Counselor contact.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (S1199)
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:
April 12, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant1On 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.