01983002
03-15-2000
Laurence P. Gill, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, (National Park Service), Agency.
Laurence P. Gill v. Department of the Interior
01983002
March 15, 2000
Laurence P. Gill, )
Complainant, )
)
v. ) Appeal No. 01983002
) Agency No. FNP-98-007
)
Bruce Babbitt, )
Secretary, )
Department of the Interior, )
(National Park Service), )
Agency. )
____________________________________)
DECISION
The Commission finds that this matter concerns an attempt by complainant
to file appeals from an agency final decision (FAD) on an EEO complaint,
as well as from a grievance decision. We first address his appeal from
the FAD. Based on a review of the record, the Commission finds that the
agency properly dismissed, in its January 29, 1998 FAD, complainant's
complaint for previously filing a negotiated grievance on the same
claims under a negotiated grievance agreement that permitted claims of
discrimination to be raised.<1> See 64 Fed. Reg. 37,656 (1999) (to be
codified and hereinafter referred to as 29 C.F.R. �1614.107(a)(4)). We
are not persuaded by complainant's arguments on appeal to reach a
contrary conclusion.<2>
The Commission finds that, by memorandum dated March 28, 1997, complainant
was issued a Notice of Reprimand (NOR) by his supervisor for purportedly
acting beyond his position description on March 26, 1997. By memorandum
dated May 7, 1997, complainant, by his chief union steward, filed
a grievance in connection with the NOR, apparently alleging reprisal
discrimination for prior EEO activity. The NOR was sustained by an
agency official on July 21, 1997. We find, in this regard, that the
collective bargaining agreement (CBA) permitted claims of employment
discrimination to be raised in the negotiated grievance process or in
the EEO complaint process but not both. We further find that the CBA,
in pertinent part, advised grievants that they had the right to have
the agency's final decision reviewed by the Commission.
The Commission finds, in addition, that complainant filed a formal EEO
complaint dated September 25, 1997, based on reprisal discrimination,
in connection with the NOR at issue in the grievance. Accordingly,
the Commission concludes that complainant elected to proceed with
his grievance and, therefore, his September 25, 1997 EEO complaint
was properly dismissed by the agency in its January 29, 1998 decision.
See 29 C.F.R. �1614.301(a).
We now turn to complainant's attempt to appeal the agency's July 21, 1997
decision on his grievance as permitted under 64 Fed. Reg. 37,659 (1999)
(to be hereinafter referred to and codified as 29 C.F.R. ��1614.401(d)
and 1614.402). The agency recognized its obligation to provide
complainant with notice of the right to appeal to the Commission a
grievance decision involving a claim of employment discrimination,
when the agency, by letter dated May 28, 1998, provided such notice.
See 29 C.F.R. �1614.301(a). This notice, however, was well beyond the
time complainant had already filed his appeal from the FAD in this case.
The record is not clear as to whether complainant filed his grievance
appeal within the requisite 30 days. Although the CBA, as we noted
earlier, sets forth a grievant's right to appeal a decision to the
Commission, it does not set forth the applicable time limitation.
Complainant's appeal itself lacks clarity in this regard, and he appears
to argue that he was misled by, among others, an agency EEO employee
when complainant purportedly contacted her on the appropriate process
for filing a grievance appeal. Finally, we find that this matter was
never docketed as a grievance appeal to the Commission.
Having reviewed the entire record, the arguments on appeal, including
those not expressly addressed herein, and for the foregoing reasons, the
Commission hereby AFFIRMS the FAD's dismissal of complainant's complaint
in accordance with 29 C.F.R. �1614.107(a)(4). However, the Commission
REMANDS the matter of complainant's grievance for the sole purpose of
determining the timeliness of his grievance appeal. This decision
is not a decision on the merits of complainant's grievance appeal.
The agency shall comply with the Commission's ORDER set forth below.
ORDER
Within sixty (60) calendar days of receipt of this ORDER, the agency
shall conduct a supplemental investigation which shall include the
following actions:
1. The agency shall obtain, under oath or affirmation, a statement
from complainant, who, with his representative, shall cooperate in this
supplemental investigation, notwithstanding the fact that complainant
has purportedly retired from the agency during the pendency of this
matter, regarding when and, specifically, how, if at all, complainant
first became aware of the 30 days requirement for filing a grievance
appeal to the Commission in this case. In this regard, complainant shall
provide all necessary documentation to the agency investigator, including
but not limited to the date and contents of a purported fax to the EEO
employee identified in complainant's appeal exhibit (14)(a), and the
date complainant received the July 21, 1997 grievance decision at issue.
2. The agency shall obtain, under oath or affirmation, statements
from those agency employees whom complainant identified in his appeal
as having purportedly misled him regarding his right to appeal his
grievance to the Commission. These statements shall contain all
necessary information, including applicable dates and contents of
conversations between complainant and the personnel at issue, so that
the Commission may be able to render a determination on the timeliness
of complainant's grievance appeal to the Commission.
Upon completion of the investigation, the agency must provide the
complainant with a copy of the supplemental investigation record and
findings and return the completed record to the Compliance Officer, as
referenced below. Upon receipt by the Compliance Officer, the matter
will be docketed as a grievance appeal and processed appropriately.
The complainant may, within fifteen (15) days of receipt of the
supplemental record, submit a statement concerning the supplemental record
to the Compliance Officer. Upon receipt by the Compliance Officer,
the supplemental record will be included in the grievance appeal file
and the grievance appeal will be processed appropriately.
In accordance with EEOC�Management Directive (MD) 110 as revised
November 9, 1999, 9-23, the agency shall give priority to this remanded
case in order to comply with the time frames contained in this Order.
The Office of Federal Operations will issue sanctions against agencies
when it determines that agencies are not making reasonable efforts to
comply with a Commission order to investigate a complaint.
IMPLEMENTATION OF THE COMMISSION'S DECISION
Compliance with the Commission's order is mandatory. The agency shall
submit its compliancereport of the completion of all ordered action
within the time frame set forth above. The report shall be submitted to
the Compliance Officer, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036.
The agency's report must contain the above requested documentation,
and the agency must send a copy of all submissions to the complainant.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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:
March 15, 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.
2The Commission finds that complainant's appeal, to be timely, would have
to be filed by February 28, 1998. However, that day fell on a Saturday,
and the next business day was Monday, March 2, 1998. In addition,
the Commission finds the record unclear as to when complainant actually
received the FAD. Therefore, we find complainant's appeal to be timely.
See 64 Fed. Reg. 37,659 and 37,661 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. ��1614.402(a) and 1614.604, in pertinent
parts, respectively). We further find, however, that, on July 13,
1998, complainant's attorney filed an untimely "supplemental statement"
in support of complainant's March 2, 1998 appeal. Accordingly, the
Commission has not considered any arguments contained therein. See 64
Fed. Reg. 37,659 (1999) (to be codified and hereinafter referred to as
29 C.F.R. �1614.403(d)).