01981947_r
09-22-1999
Johanna K. Begay, Appellant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Johanna K. Begay, )
Appellant, )
)
v. ) Appeal No. 01981947 )
Bruce Babbitt, )
Secretary, )
Department of the Interior, )
Agency. )
_________________________________)
DISMISSAL OF APPEAL
The record reflects that in January 1995, appellant received a reduction
in force (RIF) notice to be effective April 1, 1995, and issued as a
result of a reduction in funds.
On March 13, 1995, appellant filed an appeal with the Merit Systems
Protection Board (MSPB), seeking review of the separation from agency
employment as a result of the RIF action.
On April 13, 1995, appellant filed a grievance over the RIF, claiming
in part that the RIF was an act of age discrimination. On April 24,
1995, appellant received a step 2 decision that denied the grievance.
On May 10, 1995, the MSPB issued an initial decision, dismissing
appellant's appeal. The MSPB determined that appellant was not entitled
to appeal the separation action to the MSPB, and that the agency's
grievance procedure remained the appropriate forum for addressing the
matter. The MSPB further determined that appellant made �only a bare
assertion� of discrimination by stating in her appeal to the MSPB that
her �age was probably used� by the agency in making the RIF decision.
The MSPB determined, however, that this statement was so speculative and
was unsupported by any other credible evidence, and did not rise to the
level of a non-frivolous allegation of discrimination.
On February 8, 1996, appellant and the agency agreed to proceed
to arbitration on the grievance appellant filed regarding the RIF.
The arbitrator was presented with two issues: whether the entity where
appellant was employed by the agency was the proper �competitive area�
for RIF purposes; and whether RIF regulations were applicable to
appellant, as a status quo employee. The issue of age discrimination
was not presented to the arbitrator.
On March 3, 1996, the arbitrator determined that appellant's RIF was
based on an erroneous competitive area; and sustained the grievance
that challenged the agency's use of RIF procedure that led to
appellant's separation. The arbitrator did not address the issue of
age discrimination.
On April 25, 1996, the agency filed exceptions to the arbitrator's award
to the Federal Labor Relations Authority (FLRA). On December 18, 1997,
the FLRA set aside the arbitration award based on an error of law.
The FLRA's decision did not address the issue of age discrimination.
It is the FLRA decision of December 18, 1997, that is the subject of
the instant appeal.
On December 26, 1997, appellant filed a petition for review of the
FLRA decision in the United States Federal Circuit Court of Appeals
(No. 98-3104). The record reflects that on January 16, 1998, the Court
issued an Order to Show Cause why appellant's petition should not be
dismissed for lack of jurisdiction. The record contains appellant's
response to an Order to Show Cause, dated January 30, 1998. Therein,
appellant claimed that the FLRA decision is based on an unfair labor
practice. The record in this case contains no evidence of the Court's
action on this matter.
On appeal, appellant argues that she was improperly subjected to a RIF on
the basis of her age, and requests that the Commission review the FLRA
decision �insofar as [appellant] raised an age discrimination charge in
her original grievance.�
In response, the agency acknowledges that appellant raised the issue
of age discrimination in her initial grievance and before the MSPB.
The agency argues, however, that appellant did not subsequently raised
the issue of age discrimination before the arbitrator or before the FLRA.
The agency argues that appellant waived her right to raise the issue of
age discrimination.
EEOC Regulation 29 C.F.R. �1614.401(c) provides that an appeal may be
filed of the final decision of the agency, the arbitrator, or the FLRA
on a grievance action when an issue of employment discrimination was
raised therein. The Commission notes that appellant initially challenged
a RIF action through the grievance process and before the MSPB, and in
both forums raised the issue of age discrimination. The Commission notes
further, however, that after appellant's grievance was denied, appellant
and the agency stipulated that arbitration on the grievance would be
confined to two issues that were totally unrelated to the issue of age
discrimination. The subject of the instant appeal is the FLRA decision
of December 18, 1997, which set aside the arbitrator's award and which,
also, is silent to the issue of appellant's RIF being motivated by age
discrimination. As the Commission finds no evidence that appellant
raised the allegations of discrimination before the arbitrator or before
the FLRA, the Commission does not have jurisdiction in this matter,
and the appeal is DISMISSED.
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 (S0993)
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:
September 22, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations