02970015
04-14-2000
Jimmy W. Glenn, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Jimmy W. Glenn v. Department of the Treasury
02970015
April 14, 2000
Jimmy W. Glenn, )
Complainant, )
)
v. ) Appeal No. 02970015
)
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
______________________________)
DISMISSAL OF APPEAL
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 on a grievance when an issue of employment
discrimination was raised in a negotiated grievance procedure that permits
such issues to be raised.<1> EEOC Regulation 29 C.F.R. �1614.401(a)
provides that a complainant may appeal an agency's final action or the
agency's dismissal of a complaint.
The record contains Article 41 of the collective bargaining agreement
which provides in Section 2D that an employee has the right to raise
allegations of discrimination in a grievance. Section 6 of Article 41
outlines the process for resolving grievances. Section 10 provides
that failure on the part of the grievant or the union to prosecute
the grievance at any step of the grievance process had the effect of
nullifying the grievance. Section 8 provides that adverse decisions
rendered at the last step of the grievance process may be appealed to
binding arbitration and that the union must notify the agency of an
appeal within 21 calendar days of receipt of a decision rendered at the
last step.
The record reveals that the complainant, a shop steward at the time,
filed a written grievance, dated April 9, 1996. Therein, he alleged that
he was discriminated against on the bases of age and sex when he was
taken off a "P.R.P."work assignment for reasons which were not related
to his performance and that he was subjected to disparate treatment.
The complainant also alleged that only younger females were selected
and considered for certain training and for special assignments and that
he was denied attendance at training. The complainant alleged further
that management conspired to effect his removal by creating conditions
which served to negatively impact his performance.
The record reveals that the complainant submitted a Memorandum in May
1996 to the agency directing that no action be taken on his pending six
grievances because he was being furloughed. The record also reveals
that the agency sent a Memorandum in May 1996 to the union informing the
union that the grievances would not be held in abeyance and requested
that the union provide them the name of a union representative who would
handle the pending grievances. On May 31, 1996, the union was notified
that the grievance had been nullified on the grounds that the union had
failed to prosecute.
In a March 19, 1997 Memorandum to the complainant, the agency stated that
the complainant raised the grievance again with the agency in February
1997; that the agency's final response was received by the union on
February 13, 1997; and that arbitration was not invoked until March 10,
1997. The agency determined that the grievance was untimely because
arbitration was not invoked in a timely manner and in its Memorandum
also noted the previous nullification. The agency stated alternatively
in the March 19, 1997 Memorandum that even if the grievance were timely,
the complainant had failed to show that he was discriminated against.
Upon review, the Commission finds that the negotiated grievance procedure
allowed allegations of discrimination and that the complainant raised such
allegations in his grievance. The complainant's grievance was denied on
the grounds of untimeliness as indicated in the March 19, 1997 Memorandum
which the Commission will treat as a final decision. Accordingly, the
Commission does not have jurisdiction to review procedural determinations
by an agency solely related to the grievance process and the collective
bargaining agreement, such as the timeliness of the filing of the
grievance or the timeliness of filings of appeals within the grievance
process. See Johnson v. Equal Employment Opportunity Commission, EEOC
Request No. 05910188 (March 20, 1991); Mines v. Department of Health
and Human Services, EEOC Request No. 05940663 (May 30, 1995) (outside
of Commission's jurisdiction to determine whether a grievance could be
amended to add discrimination claim because such a question involves
interpretation of the collective bargaining agreement); Thompson-Wesley
v. Department of the Army, EEOC Appeal No. 02970012 (August 24, 1999).
Consistent with the foregoing, the Commission DISMISSES the complainant's
appeal.
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 14, 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 Assistant
1On 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.