0120090296
01-22-2009
Johnny Myers, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, (Bureau of Engraving and Printing), Agency.
Johnny Myers,
Complainant,
v.
Henry M. Paulson, Jr.,
Secretary,
Department of the Treasury,
(Bureau of Engraving and Printing),
Agency.
Appeal No. 0120090296
Agency No. 06-0193-F
Hearing No. 450-2008-00234X
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final order dated October 22, 2008, regarding the dismissal of his formal
complaint alleging 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.
During the period at issue, complainant was employed as a Currency
Overprinting and Processing Equipment Pressman at the agency's Western
Currency Facility in Fort Worth, Texas.
On June 30, 2006, complainant filed the instant formal complaint.
Therein, complainant claimed that he was subjected to discrimination
because of race (African-American), age (55) and reprisal for prior
EEO activity when, since May 2006 and continuing, he has not been
assigned to his original press [Press #41] and/or has not been given a
permanent press assignment. The record indicates that complainant was
on light/limited duty for a period of time due to an injury, and when he
returned to full duty he was not assigned to work on his original press,
but required to work as a "floater."
At the conclusion of the investigation into his complaint, complainant
received a copy of the investigation report and requested a hearing
before an EEOC Administrative Judge (AJ). The agency filed a Motion
to Dismiss the complaint with the AJ. In its motion, the agency
requested that the AJ dismiss the instant complaint, pursuant to 29
C.F.R. � 1614.107(a)(4), because complainant had previously raised the
same matter (that he was not assigned to his original press, Press #41)
in the agency's negotiated grievance process that allows for claims of
discrimination to be raised.
On October 22, 2008, the AJ granted to agency's motion and dismissed
the complaint, pursuant to 29 C.F.R. � 1614.107(a)(4), on the grounds
that complainant had previously raised the same matter in the negotiated
grievance process. On October 22, 2008, the agency issued a final order
implementing the AJ's dismissal decision. The instant appeal followed.
On appeal, complainant, through his attorney, argues that the grievance
concerning his assignment addressed the issue of a violation of an
established "past practices," while his EEO complaint addressed his
discrimination claim. Therefore, complainant asserts that the respective
claims in his EEO complaint and in his grievance were separate and
distinct. Complainant further argues that that the agency's collective
bargaining agreement does not permit claims of discrimination to be
raised in the grievance process. He also asserts that the grievance
was filed by the union and not himself.
EEOC Regulation 29 C.F.R. � 1614.301(a) states that when employed by
an agency subject to 5 U.S.C. � 7121(d) and covered by a collective
bargaining agreement that permits claims of discrimination to be raised
in a negotiated grievance procedure, a person wishing to file a complaint
or grievance on a matter of alleged employment discrimination must elect
to raise the matter under either part 1614 or the negotiated grievance
procedure, but not both. An aggrieved employee who files a grievance with
an agency whose negotiated agreement permits allegations of discrimination
may not thereafter file a complaint on the same matter under this part
1614 irrespective of whether the agency has informed the individual of
the need to elect or whether the grievance actually raised an issue of
discrimination.
The record contains a copy of a step 1 grievance, dated May 23, 2006,
relating to the agency's purported failure to return complainant "to
his normally assigned press and Partnership assignment upon returning
to the section." The grievance further stated that the requested
remedy was to "[r]eturn to the Established Past Practice by assigning
[complainant] and [identified employee] to Press 41." The grievance
was signed by complainant, as well as a representative of his union.
The grievance was denied and, on May 30, 2006, the union filed a step
2 grievance reiterating that the agency "failed to return [complainant]
to his normal assigned press." On June 5, 2006, complainant contacted
an EEO counselor to raise his discrimination claims concerning this
same matter. On June 8, 2006, the agency again denied the grievance,
as well as the subsequent step 3 grievance filed by the union on June
19, 2006. Complainant filed his formal complaint of discrimination on
June 30, 2006.
Here, complainant first elected to pursue his claim that he was not
permanently assigned to his original press (Press #41) by filing
the grievance on May 23, 2006. While complainant now argues he did
not file the grievance, we note he signed the step 1 grievance and,
more significantly, the grievance was clearly pursued on his behalf
by his union representatives. Subsequently, complainant contacted an
EEO counselor on June 5, 2006, and filed the instant EEO complaint on
June 30, 2006. In both his EEO complaint and in the previously filed
grievance, complainant is in essence challenging the identical agency
action-when upon his return to full duty following an injury he was not
permanently assigned to his original press (Press #41) but required to
work as a floater. While complainant correctly notes he did not raise
his allegations of discrimination in his grievance, dismissal based on
the election required by 29 C.F.R. � 1614.301(a) does not require that
an allegation of discrimination actually be raised in the grievance so
long as there was an opportunity to do so.
Complainant argues that the agency's collective bargaining agreement
does not permit claims of discrimination to be grieved. However,
the record contains evidence to the contrary. A copy of the collective
bargaining agreement does not indicate that discrimination claims are
excluded from the grievance process. While this alone might not be
sufficient evidence, the record also contains an affidavit from an agency
Labor Relations Specialist that affirmatively states that the collective
bargaining agreement has been interpreted "to allow discrimination claims
to be raised in the negotiated grievance process and the union and its
employees have in fact raised discrimination claims." See Tillman
v. Department of Defense, EEOC Appeal No. 01A51891 (May 10, 2005).
Based on this evidence, we are persuaded that that the subject grievance
procedure permits claims of discrimination.
Accordingly, the agency's final order implementing the AJ's dismissal
of the instant complaint is AFFIRMED.
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
January 22, 2009
__________________
Date
2
0120090296
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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