Rodney E. Gaines, Complainant,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 8, 2000
01A05822 (E.E.O.C. Nov. 8, 2000)

01A05822

11-08-2000

Rodney E. Gaines, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.


Rodney E. Gaines v. Veterans Affairs

01A05822

November 8, 2000

.

Rodney E. Gaines,

Complainant,

v.

Hershel W. Gober,

Acting Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A05822

Agency No. 200P-2441

DECISION

Complainant filed a timely appeal with this Commission from an agency

decision pertaining to 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.<1> The Commission accepts the

appeal in accordance with 29 C.F.R. �1614.405.

On July 19, 2000, complainant filed a formal complaint claiming that he

was discriminated against based on race when he was issued a seven-day

suspension (February 23, 2000 through February 29, 2000). The complaint

was dismissed by the agency on the grounds that he had raised the matter

in a negotiated grievance procedure that permits claims of discrimination.

According to the agency, complainant's suspension was previously addressed

through the grievance procedure.

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 contains a copy of the negotiated grievance procedure,

identified as a �Master Agreement.� The Master Agreement provides that

acts of alleged discrimination �may be filed either under the statutory

procedure or the negotiated grievance procedure but not both....�

(emphasis added). Moreover, �[a]n employee shall be deemed to have

exercised their option under this Section when they timely initiate

an action under the applicable statutory procedure or files a timely

grievance ... whichever event occurs first.�

The record reveals that complainant filed a grievance on February

22, 2000, approximately twenty days after he was issued a letter of

suspension. On April 25, 2000, complainant's Third Step Grievance

was denied. Following the denial of his grievance, on June 19, 2000,

complainant contacted the EEO office regarding the same seven-day

suspension. The Commission determines that complainant elected the

negotiated grievance procedure, as the grievance was clearly filed before

the EEO complaint. Accordingly, the agency's decision dismissing the

complaint was proper and is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 8, 2000

__________________

Date

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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.