0120082194
08-20-2008
Michael L. Sylvester, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Michael L. Sylvester,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120082194
Agency No. 9R1M08026
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 21, 2008, dismissing his complaint of 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.
In a complaint dated February 7, 2008, complainant alleged that he
was subjected to hostile workplace discrimination on the bases of race
(African-American) and reprisal for prior protected EEO activity under
Title VII when: on December 10, 2007, he became aware that a co-worker,
who was involved in a dispute with him, did not receive any form of
disciplinary action, whereas complainant received a removal, which was
subsequently reduced to a fourteen day suspension.1 The agency dismissed
the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to
state a claim.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides,
in relevant part, that an agency shall dismiss a complaint that
fails to state a claim. An agency shall accept a complaint from any
aggrieved employee or applicant for employment who believes that he
or she has been discriminated against by that agency because of race,
color, religion, sex, national origin, age or disabling condition.
29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case
precedent has long defined an "aggrieved employee" as one who suffers
a present harm or loss with respect to a term, condition, or privilege
of employment for which there is a remedy. Diaz v. Department of the
Air Force, EEOC Request No. 05931049 (April 21, 1994). In the instant
case, we find that complainant has alleged sufficient facts to state a
claim of discrimination. In his complaint, he is alleging that he was
discriminatorily disciplined based on race and/or reprisal for engaging
in a altercation with a coworker, while the similarly situated coworker,
who was not a member of his protected classes, received no discipline.
Therefore, the agency improperly dismissed the complaint for failure to
state a claim.
However, on appeal the agency contends that the complaint should also
be dismissed pursuant to 29 C.F.R. �1614.107(a)(4) because complainant
had earlier elected to pursue the claim under a negotiated grievance
procedure. In support of this position, the agency points to copies of
the grievance in the record.
EEOC Regulation 29 C.F.R. � 1614.301(a) states that when a person is
employed by an agency subject to 5 U.S.C. � 7121(d) and is 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 the
acceptance of grievances which allege 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 has raised an issue of discrimination. The record
in this matter reflects that complainant had elected to initially file a
grievance regarding this disciplinary action in the agency's negotiated
grievance procedure. Further, he received a remedy of a reduction of his
removal to a fourteen day suspension. Thus, the claim of discrimination
regarding complainant's disciplinary action has been concluded in the
negotiated grievance procedure and therefore the issue has been resolved.
Consequently, this issue is, alternatively, properly dismissed for first
electing to file the same issue in the agency's negotiated grievance
procedure.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed, albeit on different grounds than those articulated
by the agency.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 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 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 (Z0408)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 20, 2008
__________________
Date
1The agency had also dismissed additional, procedurally defective
claims. On appeal, however, complainant does not challenge any of these
dismissals. Therefore, the agency's dismissal of these additional claims
will not be addressed in this decision.
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0120082194
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120082194