02A40012
11-01-2004
Paul Gayle-Smith, Complainant, v. Roderick R. Paige, Secretary, Department of Education, Agency.
Paul Gayle-Smith v. Department of Education
02A40012
November 1, 2004
.
Paul Gayle-Smith,
Complainant,
v.
Roderick R. Paige,
Secretary,
Department of Education,
Agency.
Appeal No. 02A40012
DECISION
Pursuant to 29 C.F.R. � 1614.401(d), the complainant timely filed
an appeal postmarked June 24, 2004, from a final grievance decision
dated May 25, 2004 finding no discrimination on his grievance initiated
under the agency's negotiated grievance procedure.<1> The complainant
claimed that the agency retaliated against him for prior EEO activity
when it denied his within-grade increase (WGI) for which he completed the
required waiting period on February 8, 2004. The FAD gave appeal rights
to the Equal Employment Opportunity Commission (EEOC or Commission).
In response to the complainant's appeal, the agency argues that the final
grievance decision mistakenly gave appeal rights to the Commission because
it does not have jurisdiction over the appeal.<2> Under 29 C.F.R. �
1614.401(d), the Commission has no jurisdiction over an appeal from a
final grievance decision when it is appealable to the MSPB. Citing 5
C.F.R. � 1201.3(a)(5), the agency argues that the final grievance
decision is appealable to the MSPB. This regulation states that the
MSPB has jurisdiction over a reconsideration decision sustaining a
negative determination of competence for a general schedule employee.
The agency issued a reconsideration decision upholding the denial of
the WGI on April 8, 2004.
MSPB Regulation 5 C.F.R. � 1201.3(a)(5) is inapposite because the
complainant is appealing from a final grievance decision finding no
reprisal discrimination, not a reconsideration decision. As stated in the
reconsideration decision, the complainant could challenge it by filing
a grievance under the collective bargaining agreement or an appeal with
the MSPB, but not both. See 5 C.F.R. � 1201.3(c). The final grievance
decision denied the grievance, and this is the matter before us now.
For determining MSPB jurisdiction over a final grievance decision, the
applicable regulation is 5 C.F.R. � 1201.154(d). This regulation states,
in relevant part, that if the appellant filed a grievance with the agency
under a negotiated grievance procedure, he may ask the Board to review
the final decision on the grievance if he alleges before the Board that
he is a victim of prohibited discrimination. It continues that usually,
the final decision on a grievance is the decision of an arbitrator.
In response to the complainant's appeal, the agency argues that because
the union did not seek arbitration, the agency's May 25, 2004 grievance
decision constitutes the final decision.
In Gustave-Schmidt v. Department of Labor, 87 M.S.P.R. 667, 671
(2001) the Board ruled that it may "review an arbitration decision,
i.e., a final grievance decision," if the action appealed is otherwise
appealable to the Board, and the appellant has raised an allegation of
prohibited discrimination under 5 U.S.C. � 2302(b)(1) in connection
with the action raised. 5 U.S.C. � 7121(d); 5 C.F.R. � 1201.154(d).
In Colligan v. Department of the Army, 36 M.S.P.R. 547, 549 (1988),
the Board referred to a final decision as being one of an arbitrator.
In Colligan, the appellant filed a grievance, and the Board stated that
he did not receive a final decision because he did not get a decision
from an arbitrator. In the instant case, since the union had the option
to invoke arbitration and did not do so, the agency's argument that the
final grievance decision is a final decision for purposes of conferring
jurisdiction to the MSPB is inaccurate. Accordingly, pursuant to 29
C.F.R. � 1614.405, the Commission accepts the complainant's appeal from
the agency's final decision in the above-entitled matter.
We now turn to the merits of the complainant's claim. The complainant
claims that his supervisor, who denied the WGI, was retaliating
against him for filing an EEO complainant against his supervisor
in 2001. The supervisor explained that he denied the WGI because the
complainant's performance was minimally satisfactory both in terms of
productivity and quality of work. The complainant controverts this,
but has not shown the agency's judgment was pretext to mask reprisal
discrimination. Accordingly, the final grievance decision finding no
reprisal discrimination is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 1, 2004
__________________
Date
1The appeal was previously docketed by this Commission as 01A44529.
It was later redocketed a 02A40012.
2In an effort to cure this perceived error, on August 13, 2004, the agency
reissued the FAD with appeal rights to the Merit Systems Protection Board
(MSPB). In communications between the EEOC and clerks at the MSPB on
October 25, 2004, the MSPB stated it had no record of a recent appeal
by the complainant.