0120092228
09-18-2009
Jim Simek, Complainant, v. Christopher J. Scolese, Acting Administrator, National Aeronautics and Space Administration, Agency.
Jim Simek,
Complainant,
v.
Christopher J. Scolese,
Acting Administrator,
National Aeronautics and Space Administration,
Agency.
Appeal No. 0120092228
Agency No. NCN-09-GRC-014
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 12, 2009, 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. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. In his complaint, complainant alleged that he
was subjected to discrimination on the bases of age (55 years of age at
time of incident) and reprisal for prior protected EEO activity under
a statute that was unspecified in the record when:
1. Management denied complainant's request for a reconsideration of his
performance evaluation for the period from May 1, 2007 to April 30, 2008.
The agency dismissed the claim on the grounds that complainant had
previously raised the matter in a negotiated grievance procedure.
On appeal, complainant denies that the matters raised in the grievance
and in the instant complaint are the same. Instead, complainant alleges,
the agency mischaracterizes the instant complaint. Complainant contends
on appeal that the issue in the complaint is as follows:
Complainant was denied a promotion in his position as a Realty
Specialist/Administrative Officer; that after a desk audit supported
a higher grade, he was transferred to the position of Facilities
Operations Specialist, a position that did not utilized [sic] his
education or experience background and for which he believed he was less
qualified. Then his position of Realty Specialist/Administrative Officer
was assigned to an employee who was much younger and at a higher pay
grade.
A review of both the informal and formal complaints, however, contradicts
complainant's argument and supports the agency. The informal complaint
lists the issue as "[t]he Complainant feels that he was discriminated
against based upon his age and retaliation when his request for a
performance evaluation reconsideration was denied." As for the formal
complaint, in box 11 on the form, which asks "Explain how you believe
you were discriminated against" complainant wrote "see grievance #
2, attached." Nowhere in box 11 does complainant mention a denial of
promotion or a transfer. Furthermore, the attached documents address
complainant's grievance concerning his performance evaluation. Finally,
we note that on box 14 of the formal complaint, which is entitled
"corrective action you want taken on your complaint" complainant did
not ask for the promotion he alleges he was denied, nor did he ask to
be transferred back to his previous position. Instead he asked for the
removal of "derogatory and unsubstantiated remarks on my appraisal"
and for the agency to "change appraisal rating to fully successful."
We therefore find that the agency correctly identified the issue in the
complaint as being about complainant's performance appraisal. However,
even assuming complainant's formal complaint identified the issues as
the denial of promotion and the involuntary transfer, we note that these
issues were also raised in his step 2 grievance.
The regulation set forth at 29 C.F.R. � 1614.107(a)(4) provides that an
agency may dismiss a complaint where the complainant has raised the matter
in a negotiated grievance procedure that permits claims of discrimination.
In the instant case, the record shows that complainant filed a grievance
concerning the matter identified in this complaint. Additionally,
the record shows that under the terms of the agency's union agreement,
employees have the right to raise matters of alleged discrimination
under the statutory procedure or the negotiated grievance procedure, but
not both. As the record indicates that complainant elected to pursue the
matter within the grievance procedure, we find that the agency properly
dismissed the claim pursuant to 29 C.F.R. � 1614.107(a)(4).
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
September 18, 2009
__________________
Date
2
0120092228
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120092228