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rescinded the letter of acceptance and issued a final decision dismissing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.