Emory L. Lewis, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJan 28, 2009
0120090038 (E.E.O.C. Jan. 28, 2009)

0120090038

01-28-2009

Emory L. Lewis, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.


Emory L. Lewis,

Complainant,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120090038

Agency No. 200J05532008103848

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated August 29, 2008, dismissing his complaint of 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.

Upon review, the Commission finds that complainant's complaint was

properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure

to state a claim.

In a complaint dated August 15, 2009, complainant alleged that he was

subjected to discrimination on the basis of reprisal for prior protected

EEO activity under Title VII of the Civil Rights Act of 1964 when: (1)

he was suspended from duty May 31-June 2, 2008; and (2) he was subjected

to harassment when he was (a) issued the letter of suspension; (b) he

was issued a letter of counseling for taking food from the kitchen; (c)

he went to the union office and they would not help him until he got paper

work; (d) he was told that he had a meeting with his supervisor regarding

the accusations; (e) he was issued a proposed suspension on April 17,

2008; (f) he was poorly represented; (g) he was forced to sign the 3 day

suspension; and (h) on July 17, 2008, his supervisor asked him to do a

written report regarding an incident between complainant and a nurse.

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 indicates that complainant first elected to file a grievance

regarding the 2008 suspension (claim 1) and that he was informed that the

agency is covered by 5 U.S.C. � 7121(d). As such the Commission affirms

the agency's dismissal of claim 1, as well as claims 2 (a), (b), (d),

(e) and (g) as they are inextricably intertwined with the suspension.

While complainant has tried to present the events relating to his

suspension as an independent claim of harassment, the Commission finds

that he could and should have raised his harassment claim during the

grievance process, where he first elected to proceed with this matter.

The Commission further finds that claims 2 (c) and (f) are allegations

concerning the representation he received by the union, essentially

claims of violations of the collective bargaining labor laws over which

the Commission has no jurisdiction.

Regarding claim 2(h), the Commission finds that the matter fails to state

a claim under the EEOC regulations because complainant failed to show that

he suffered harm or loss with respect to a term, condition, or privilege

of employment for which there is a remedy. See Diaz v. Department of

the Air Force, EEOC Request No. 05931049 (April 21, 1994).

Accordingly, the agency's final decision dismissing complainant's

complaint is affirmed.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 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 (S0408)

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 (Z1008)

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

January 28, 2009

__________________

Date

2

0120090038

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

3

0120090038