01A11143_r
07-25-2002
Robert A. Russell, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Robert A. Russell v. Department of Veterans Affairs
01A11143
.July 25, 2002
Robert A. Russell,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A11143
Agency No. 200J-665
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated October 26, 2000, dismissing his complaint of
unlawful employment discrimination brought pursuant to Title VII of
the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The Commission accepts the appeal. 29 C.F.R. � 1614.405.
The record reflects that complainant contacted an EEO Counselor on March
20, 2000, concerning a proposed termination notice he received on March
17, 2000. Complainant contends that the proposed termination unfairly
resulted from a conflict he had with a supervisor in January 2000,
averring that he was falsely accused of threatening the supervisor's life.
Complainant also asserts that the agency subjected him to a hostile work
environment since January 2000; wrongfully placing him on administrative
leave; and forcing him to undergo psychiatric hospitalization.
Complainant filed a formal complaint on May 3, 2000, claiming
discrimination and harassment on the bases of age, disability, and in
reprisal for filing prior EEO complaints. In a notice dated August 22,
2000, the agency accepted the complaint for investigation.
Concomitant with his pursuit of his EEO complaint, complainant pursued
the administrative appeal rights set forth in the notice of proposed
termination. Based on this appeal, in a notice dated June 2, 2000,
the agency reduced complainant's proposed termination to a one-day
suspension, noting that the circumstances of the incident were fully
considered along with complainant's employment history. The notice
additionally informed complainant that he could file a grievance with
the union if he disagreed with this administrative determination.
On June 16, 2000, complainant filed a grievance on the one-day suspension,
arguing that this determination was unfair given that there was no �direct
evidence� to prove that complainant threatened the life of his supervisor,
and because complainant's statements were used against his interest.
On July 7, 2000, the agency denied the grievance, finding that the full
circumstances of the incident had been considered, and that the decision
to suspend reflected the agency's reasons for sustaining the charge and
reducing the discipline.
In its October 26, 2000 decision, the agency rescinded its August 22,
2000 acceptance of the complaint, and instead dismissed the complaint on
the grounds that complainant had raised the same claim in a grievance.
Specifically, the agency determined that the incidents that led to
the suspension, i.e., the threatening remarks; administrative leave;
psychiatric hospitalization; and proposed termination, were raised in
both forums.
On appeal, complainant argues, in pertinent part, that the issue in
the grievance concerned a technical evidentiary issue, unrelated to the
merits of complainant's discrimination claim. In response, the agency
argues that the matters raised in the formal complaint are inextricably
intertwined with complainant's grievance, asserting that the complaint
was properly dismissed.
The regulation set forth at 29 C.F.R. � 1614.107(a)(4) provides that an
agency may dismiss a complaint where the complainant has raised the matter
in a negotiated grievance procedure that permits claims of discrimination.
In the instant case, the record shows that under the terms of the agency's
union agreement, employees have the right to raise matters of alleged
discrimination under the statutory procedure or the negotiated grievance
procedure, but not both. Furthermore, the record reflects that complainant
was twice notified that he could not pursue both an EEO complaint and a
grievance regarding the same matter: in the March 21, 2000 Notice of
Rights and Responsibilities (signed by complainant on March 29, 2000);
and, in the Notice of Right to File a Formal Complaint, dated April 26,
2000. Nonetheless, subsequent to receiving these notices and filing his
formal EEO complaint, the record confirms that complainant then filed a
grievance concerning the agency's decision to suspend him for one day,
in lieu of termination, as discipline for the purported threat made
to his supervisor. In this regard, we find that complainant's EEO
complaint is based on this same incident, albeit also referencing his
�forced� psychiatric hospitalization and �wrongful� administrative
leave as evidence of a �hostile work environment.� Specifically,
based on our review, we find that the purported threat, along with the
ensuing administrative leave and psychiatric hospitalization, reflect an
interrelated progression of events deriving from the altercation, and that
this entire set of circumstances created the foundation for the agency's
initial decision to issue complainant a notice of proposed termination.
Therefore, because complainant's grievance concerns his challenge to
the agency's ultimate discipline, i.e., the one-day suspension in lieu
of termination, a decision based on a consideration of all of these
circumstances, as well as complainant's overall employment history,
we find that the grievance and the instant EEO complaint raise the
same matters.
Accordingly, for the reasons set forth above, we AFFIRM the agency's
dismissal of the instant complaint pursuant to 29 C.F.R. � 1614.107(a)(4).
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
July 25, 2002
__________________
Date