02970016
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
02970016
April 14, 2000
Jimmy W. Glenn, )
Complainant, )
)
v. ) Appeal No. 02970016
)
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.
In a February 2, 1996 grievance, the complainant alleged that the
selection criteria used to promote employees listed on certificate
number SC-S19195 was biased and that he was not selected because of
his participation in the union as a steward. The record also contain
an undated statement from the complainant wherein he alleged that he
was discriminated against on the bases of race, color, sex, and age in
connection with the grievance.
In a May 1, 1996 Memorandum to the agency, the complainant requested that
the agency place this grievance, i.e., roster selection, in abeyance.
In a July 24, 1996 Memorandum from the union to the agency's Labor
Relations Specialist, the chief steward confirmed that roster grievances
were closed. In a December 1996 Memorandum to the complainant, the
chief steward again stated that the roster selection grievance was closed.
In a February 13, 1997 Memorandum from the agency to the union, the agency
noted that the complainant requested that this grievance be placed in
abeyance and that the agency then requested that the union provide the
agency with the name of a representative who could handle the present
and other grievances. The February 13, 1997 Memorandum also noted that
on May 31, 1996, the union was notified that the grievance was nullified
because of a failure to prosecute.
Upon review, it appears that the grievance was nullified by the agency.
Accordingly, the Commission finds that it does not have jurisdiction to
review a procedural determination by the agency solely related to the
grievance process and the collective bargaining agreement. 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.