01982520
03-31-2000
Marshall Fritz, Complainant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Marshall Fritz v. Department of Health and Human Services
01982520
March 31, 2000
Marshall Fritz, )
Complainant, )
)
v. ) Appeal No. 01982520
Donna E. Shalala, ) Agency No. WA-CA-60484
Secretary, )
Department of Health and Human )
Services, )
Agency. )
____________________________________)
DISMISSAL OF APPEAL
EEOC Regulation 29 C.F.R. � 1614.401(d) provides that a grievant may
appeal the final decision of the agency, the arbitrator or the Federal
Labor Relations Authority on a grievance when an issue of employment
discrimination was raised in a negotiated grievance procedure that
permits such issues to be raised.<1>
In the present case, complainant filed an unfair labor practice charge,
dated June 7, 1996, wherein he alleged that the agency violated the
Federal Service Labor-Management Relations Statute by (1) failing to
furnish requested information; (2) violating a May 22, 1995 settlement
agreement reached with complainant; (3) violating an October 16, 1995
settlement agreement reached with the union and a former employee;
(4) unilaterally removing complainant from the bargaining unit; and (5)
harassing complainant and thereby discouraging employees from engaging
in protected union activity. The Regional Director of the Federal
Labor Relations Authority (FLRA) issued a letter a letter dated June
30, 1997, finding that the issuance of a complaint was not warranted
in complainant's case. Complainant appealed this decision and in a
decision dated January 6, 1998, the Office of General Counsel for the FLRA
denied complainant's appeal when they found that complainant failed to
establish grounds for reversing the Regional Director's previous decision.
The record reveals, and the Commission finds, that complainant did not
raise employment discrimination as part of his unfair labor practice
charge before the FLRA. Since complainant did not raise an allegation
of prohibited discrimination as part of the grievance, the Commission
lacks jurisdiction on this matter. See Mines v. Department of Health
and Human Services, EEOC Appeal No. 05940663 (May 30, 1995). Accordingly,
we DISMISS the appeal.<2>
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 (S1199)
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:
March 31, 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.
2We note that on appeal, complainant indicated that he was subjected to
on-the-job discrimination and harassment. The Commission finds, however,
that complainant's belated attempt to raise an issue of discrimination
on appeal does not alter the fact that complainant's grievance did not
involve an allegation of discrimination. To the extent that complainant
may be raising new allegations of discrimination, complainant is advised
to contact an EEO Counselor if he wishes to pursue them.