Robert Brown, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W Areas), Agency.

Equal Employment Opportunity CommissionMar 24, 2000
01a00652 (E.E.O.C. Mar. 24, 2000)

01a00652

03-24-2000

Robert Brown, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W Areas), Agency.


Robert Brown, )

Complainant, )

)

v. ) Appeal No. 01A00652

) Agency No. 4H-330-1634-95

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(S.E./S.W Areas), )

Agency. )

____________________________________)

DECISION

On October 27, 1999, complainant filed a timely appeal with this

Commission from a final agency decision (FAD) received by him on

October 21, 1999, pertaining to his complaint of unlawful employment

discrimination in violation of Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. � 2000e et seq.<1> In his complaint, complainant

alleged that he was subjected to discrimination on the bases of race

(White) and sex (male), when, on April 4, 1995, he was issued a seven

day suspension. For the foregoing reasons, the agency's decision is

VACATED and the complaint is REMANDED for a hearing.

ISSUE PRESENTED

Whether (1) the agency properly dismissed the complaint for alleging

discrimination during the negotiated grievance process; and (2) whether

the EEOC Administrative Judge (AJ) properly remanded the case to the

agency for dismissal in light of complainant's election to proceed with

the negotiated grievance procedure.

BACKGROUND

The record reveals the following procedural history: on August 1, 1995,

complainant contacted an EEO Counselor alleging he was discriminated

against on the bases of race (White), color (white), and sex (male), when,

on April 4, 1995, he was issued a seven day suspension. Complainant also

filed a grievance over the matter. Informal efforts to resolve his case

were unsuccessful, and on January 26, 1996, complainant filed a formal

EEO complaint. Therein, he alleged he was discriminated against on

the aforementioned bases when he was issued a seven day suspension.

In his complaint, complainant claimed an individual outside of his

protected class was not issued a suspension for the same infraction.

The agency originally accepted the complaint for investigation, but later

rescinded the letter of acceptance and issued a final decision dismissing

the complaint for failure to timely contact an EEO Counselor. Complainant

appealed the dismissal to the Office of Federal Operations. On June 10,

1998, the Office of Federal Operations reversed the agency's dismissal.

Specifically, we found complainant alleged he was not aware that he

was discriminated against until he learned, from a Union Steward, that

an individual outside of his protected class was treated more favorably

under the same circumstances. We therefore found that the agency failed

to demonstrate that complainant should have had a reasonable suspicion

of discrimination prior to when he learned that a black employee had

not been disciplined for the same infraction. Thus, we remanded the

complaint to the agency for investigation. See, Brown v. United States

Postal Service, EEOC Appeal No. 91976320 (June 10, 1998).

At the conclusion of the investigation, complainant was provided a copy

of the investigative report and requested a hearing before an EEOC AJ.

On August 6, 1999, the AJ issued an Order remanding the case to the

agency for dismissal. Specifically, the AJ found that the EEOC no

longer had jurisdiction on the merits of the claim since a decision

on the merits of the claim had previously been adjudicated during the

negotiated grievance procedure. As such, the AJ remanded the case to

the agency for dismissal.

On October 15, 1999, the agency issued a final decision dismissing the

complaint, presumably, for failure to state a claim. Specifically, the

agency found that �an EEO complaint which alleges that discriminatory

actions have been taken to influence the outcome of a decision rendered

under a negotiated grievance procedure is outside the purview of EEOC

regulations, and should be dismissed.� Lingad v. United States Postal

Service, EEOC Appeal No. 05930106 (June 24, 1993).

Complainant appealed the agency's second final decision. On appeal,

he contends that the issue alleged in the instant complaint is the seven

day suspension. He also argues that the judge in the grievance matter

informed him that discrimination was a separate issue, and would thus

not hear testimony about discrimination.

ANALYSIS AND FINDINGS

As an initial note, we find that the agency mischaratcterized the

complaint. Rather than alleging discriminatory actions during the

negotiated grievance process, the instant complaint specifically alleges

discrimination when complainant was issued a seven day suspension.

Throughout the processing of the instant complaint, the agency framed

the issue correctly, until the agency's second final decision when it

dismissed the complaint for alleging discrimination during the negotiated

grievance process. We do not find any support for the agency's finding

that complainant alleged that discriminatory actions influenced the

outcome of a decision rendered under the negotiated grievance process.

We also find that the AJ erred when she remanded the case to the

agency for dismissal. In support of her ruling, the AJ found she had

no jurisdiction over the merits of the complaint, since the complaint

had already been adjudicated during the negotiated grievance procedure.

64 Fed. Reg. 37,644, 37,658 (1999)(to be codified and hereinafter referred

to as EEOC Regulation 29 C.F.R. � 301(a)), provides that when a person

is employed by an agency which is subject to 5 U.S.C. 7121(d), and when

he is covered by a collective bargaining which permits allegations

of discrimination to be raised in a negotiated grievance procedure,

the employee may elect to file either a grievance or an EEO complaint,

but not both. However, in this case, the agency is not subject to 5

U.S.C. 7121(d) and, therefore, the complainant was permitted to file a

grievance and an EEO complaint. As such, we complainant's EEO complaint

was properly before the AJ.

Although the AJ improperly remanded the complaint, the agency likewise

improperly issued a dismissal of the case when there was sufficient

information in the investigative file to render a decision on the merits.

Nevertheless, complainant has not withdrawn his timely request for a

hearing before an EEOC AJ. We therefore remand the complaint to the

appropriate hearings unit for assignment of an AJ for hearing.

CONCLUSION

Therefore, after a careful review of the record, including complainant's

arguments on appeal, the agency's response, and arguments and evidence

not specifically discussed in this decision, the Commission VACATES

the agency's final decision and REMANDS the matter to the agency in

accordance with this decision and the ORDER below.

ORDER

The complaint is remanded to the Hearings Unit of the appropriate EEOC

field office for scheduling of a hearing in an expeditious manner.

The agency is directed to submit a copy of the complaint file to the

EEOC Hearings Unit within fifteen (15) calendar days of the date this

decision becomes final. The agency shall provide written notification

to the Compliance Officer at the address set forth below that the

complaint file has been transmitted to the Hearings Unit. Thereafter,

the Administrative Judge shall issue a decision on the complaint in

accordance with 29 C.F.R. � 1614.109 and the agency shall issue a final

action in accordance with 29 C.F.R. � 1614.110.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. 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 supporting

documentation, and the agency must send a copy of all submissions to the

complainant. If the agency does not comply with the Commission's order,

the complainant may petition the Commission for enforcement of the order.

29 C.F.R. � 1614.503(a). The complainant also has the right to file a

civil action to enforce compliance with the Commission's order prior

to or following an administrative petition for enforcement. See 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �

1614.503(g). Alternatively, the complainant has the right to file a

civil action on the underlying complaint in accordance with the paragraph

below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407

and 1614.408. A civil action for enforcement or a civil action on the

underlying complaint is subject to the deadline stated in 42 U.S.C. �

2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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 (R1199)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court WITHIN NINETY (90) CALENDAR DAYS from the date

that you receive this decision. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the

date you filed your complaint with the agency, or filed your appeal

with the Commission. 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.

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 24, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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.