01974986
11-06-1998
Gregg Goddard v. Department of the Treasury
01974986
November 6, 1998
Gregg Goddard, )
Appellant, )
)
v. ) Appeal No. 01974986
) Agency No. 96-4065
)
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
(Internal Revenue Service), )
Agency. )
______________________________)
DECISION
On June 4, 1997, appellant, by his representative, filed a timely appeal
from the agency's May 1, 1997 final decision (FAD), which dismissed
appellant's EEO complaint alleging a violation of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. 791 et seq.<1> For the reasons set forth
below, we find the agency improperly dismissed appellant's complaint.
We are not persuaded to reach a contrary determination by the agency's
response to appellant's appeal.
The salient facts are these: by letter dated August 31, 1994, appellant,
a GS-3 Clerk hired under a program for disabled persons, was issued
a decision on removal, effective September 2, 1994. In its removal
letter, the agency advised appellant that, because of the nature of
his appointment and job status,<2> he could not appeal his removal to
the Merit Systems Protection Board (MSPB) or proceed to arbitration.
However, the agency advised appellant that he could proceed through the
EEO forum and, accordingly, had to bring the matter to the attention of an
EEO Counselor within 45 days of the effective date of his removal. See
29 C.F.R. �1614.105(a)(1). Appellant received the removal decision
on September 3, 1994, according to the certified mail return receipt
he signed.
By letter dated September 20, 1994, appellant's union invoked arbitration.
After initially deciding that appellant's grievance was arbitrable
and holding a hearing, the arbitrator determined, on September 28,
1995, that appellant's grievance was not arbitrable. Subsequently,
on November 9, 1995, appellant initiated EEO counseling, and filed a
formal complaint dated September 28, 1995. On November 25, 1996, an EEOC
Administrative Judge (AJ) remanded appellant's complaint to the agency for
processing as a "mixed case," i.e., as a matter appealable to the MSPB.
See 29 C.F.R. �1614.302, in pertinent part. However, the FAD dismissed
appellant's complaint for untimely EEO Counselor contact and for having
elected to file a grievance, pursuant to 29 C.F.R. ��1614.107(b) and
.107(d), respectively. This appeal followed.
We set aside the FAD under the authority of An-Ti Chai v. National
Aeronautics and Space Administration, EEOC Request No. 05970016 (July 10,
1998), which we find controls in the present matter. In that decision,
the Commission found, in relevant part, "that because the subject matter
of appellant's grievance was not grievable, appellant did not make a
true election to proceed through the grievance process. Therefore,
he could properly file a formal EEO complaint." Id. We further stated,
in the above precedent:
If we were to deny appellant's right to proceed through the EEO process
based solely on the argument that appellant should have known his
nonselection was ungrievable simply because the agency told him so,
we would effectively be limiting appellant's right to elect between
the grievance and EEO procedures based upon the agency's positions
concerning the grievability of particular issues. Such a limitation
would clearly produce untenable results and thus we decline to impose
it in this case. [Id.]
Finally, we observe that, in the above decision, we found "that the
invalidity of appellant's election to utilize the grievance process
presents a sufficient basis for tolling the time limitations period
for EEO counselor contact. We note that appellant contacted an EEO
counselor herein on September 20, 1994, within 45-days of the August 15,
1994 Arbitrator's decision, to initiate the EEO process." [Id.]
In the present case, we find appellant's November 9, 1995 EEO Counselor
contact to be within 45 days of the September 28, 1995 arbitrator's
decision ruling appellant's grievance not arbitrable. Therefore, we
find no true election to have been made, and appellant's EEO Counselor
contact to have been timely. Accordingly, we find the agency erred in
dismissing his complaint.
Having reviewed the entire record, the arguments on appeal, including
those not expressly addressed herein, and for the foregoing reasons,
the Commission hereby VACATES the FAD and REMANDS appellant's complaint
for processing at the point at which processing ceased in accordance with
this decision and applicable regulations. The parties are advised that
this decision is not a decision on the merits of appellant's complaint.
The agency is hereby directed to comply with the Commission's ORDER set
forth below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
of the appropriate rights within one hundred fifty (150) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgement to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. 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.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
November 6, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1Appellant asserts he received the FAD on May 5, 1997. In the absence of
evidence to the contrary, we accept his appeal as timely. See 29 C.F.R.
��1614.402 and .604, in pertinent parts.
2The FAD informed appellant, in pertinent part, as follows: "You have not
been converted to career competitive status. Since you are on a special
excepted service appointment, i.e., [disabled], and you are serving your
trial period of employment, [you may not file an MSPB appeal or pursue
arbitration]."