IMOGENE MARSH, APPELLANT,
v.
NICHOLAS F. BRADY, SECRETARY, DEPARTMENT OF THE TREASURY, AGENCY.

Request No. 
05910383
Appeal No. 01910503
Agency No. 90-2159

August 8, 1991

DENIAL OF REQUEST TO REOPEN

INTRODUCTION

On February 12, 1991, Imogene Marsh (hereinafter referred to as appellant) initiated a request to the Equal Employment Opportunity Commission (EEOC) to reopen and reconsider the decision in Imogene Marsh v. Nicholas F. Brady, Secretary, Department of the Treasury, EEOC Appeal No. 01910503 (February 6, 1991). EEOC Regulations provide that the Commissioners may, in their discretion, reopen and reconsider any previous decision. 29 C.F.R. 1613.235(a). A party requesting reopening must submit written argument or evidence which tends to establish one or more of the three criteria prescribed by 29 C.F.R. 1613.235(b). Appellant appears to base her request on 29 C.F.R. 1613.235(b)(1) (new and material evidence is available that was not readily available when our previous decision was issued). For the reasons set forth herein, appellant's request is denied.

ISSUE PRESENTED

Whether our previous decision correctly affirmed the agency's rejection of a portion of appellant's complaint because she had filed a grievance on the same matter before filing the instant complaint.

BACKGROUND

Appellant filed a formal EEO complaint on August 3, 1990, based on race (black) and reprisal. One of her four allegations alleged discrimination in her receipt of a fully successful departure appraisal on May 18, 1990. The agency by final agency decision (FAD) rejected this allegation, relying on EEOC Regulation 29 C.F.R. 1613.215(a)(5) and .219(b), and on 5 U.S.C. 7121(d), on the ground that appellant previously had filed a grievance on the same matter on June 7, 1990.

The EEO counselor's report dated June 18, 1990 shows that appellant acknowledged her filing of a grievance but indicates that she had dropped it. In her formal complaint, appellant stated that she had filed a grievance but withdrew it to file the EEO complaint. The agency's FAD noted appellant's claims that she had withdrawn the grievance, but found that the grievance was at the first step of the negotiated grievance process when the formal EEO complaint was filed.

In our previous decision, the Commission affirmed the agency's decision. The Commission found that appellant had filed a formal grievance on June 7, 1990 regarding her departure appraisal, and a formal EEO complaint on August 3, 1990 on the same matter. We noted that appellant had failed to provide any evidence to substantiate her claim that she had withdrawn the grievance.

With her request to reopen, appellant proffers a memorandum that discusses the withdrawal of her grievance; she also, for the first time, asserts that the grievance she had filed was untimely. The memorandum, which is a two-way memo between an agency labor relations specialist and the chief union steward, states that appellant's grievance "will be considered withdrawn with prejudice because the grievant has elected to pursue an EEO complaint...", and further states that the grievance is untimely.

ANALYSIS AND FINDINGS

In order to merit the reopening of the Commission's prior decision, the requesting party must submit written argument or evidence which tends to establish that at least one of the criteria of 29 C.F.R. 1613.235(b) is met. It appears that appellant, with her submission of the memorandum, bases her request on 29 C.F.R. 1613.235(b)(1), which requires the submission of new and material evidence that was not readily available when our previous decision was issued.

The proffered memorandum is new in the sense that it was not previously submitted to the Commission, and was not executed until after appellant had filed her appeal. Appellant has not however explained why evidence pertaining to a withdrawal that ostensibly occurred in June 1990 was not available when her appeal was filed. Furthermore, in evaluating the memorandum in light of the applicable statute and regulations, we find the memorandum insufficiently material on the questions of both the withdrawal of the grievance and the timeliness of the grievance.

Pursuant to EEOC Regulation 29 C.F.R. 1613.219(b), the filing of a grievance by a person covered by a negotiated grievance procedure that permits allegations of discrimination constitutes an election of forum. The Regulation states in pertinent part:

"...an aggrieved employee who files a grievance in writing with an agency may not thereafter file a complaint on the same matter ... irrespective of whether the grievance has raised an allegation of discrimination...." Election is also dictated by 5 U.S.C. 7121(d), which defines the point at which an election is made: "...An employee shall be deemed to have exercised his option ... at such time as the employee timely initiates an action under the applicable statutory procedure or timely files a grievance in writing ... whichever event occurs first."

Appellant appears to be arguing that withdrawing her grievance would free her to file a later EEO complaint on the same matter. However, the Commission has held that withdrawing a timely filed grievance does not abrogate its effect for purposes of an election. See Bracket v. Department of the Air Force, EEOC Request No. 05880427 (May 23, 1987). [FN1] Therefore, the only question remaining is appellant's contention, made for the first time in her request to reopen, that her grievance was filed untimely.

Appellant gives no explanation as to why the memorandum which contained information regarding her grievance being untimely was not readily available when our previous decision was issued. Furthermore, the record contradicts her contention. [FN2] The collective bargaining agreement specifies 15 workdays as the time period for filing a grievance (Article 41, Section 5). Appellant's grievance was filed 13 workdays after her receipt of her departure rating on May 18, 1990, which was within the time period. [FN3] Accordingly, we conclude that this contention does not meet the requirements of 29 C.F.R. 1613.235(b)(1).

After carefully reviewing appellant's request, we find that appellant has provided no evidence that would warrant reopening. The regulation provides for reopening only when appellant submits written argument or evidence which tends to establish that the regulatory criteria have been met. Appellant has not done this. Accordingly, appellant's request fails to meet the criteria of EEOC Regulation 29 C.F.R. 1613.235(b).

CONCLUSION

After a review of appellant's request to reopen, the previous decision and the entire record, the Commission finds that appellant's request fails to meet the criteria of 29 C.F.R. 1613.235(b), and accordingly, the Commission denies appellant's request. The Commission's decision on EEOC Appeal No. 01910503 (February 6, 1991) remains the Commission's final decision in this matter. There is no further right of administrative appeal from the decision of the Commission on this request to reopen.

STATEMENT OF APPELLANT'S RIGHTS - ON REQUEST TO REOPEN

RIGHT TO FILE A CIVIL ACTION (P0391)

This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court WITHIN THIRTY (30) CALENDAR DAYS of the date that you receive this decision. The limitations period for filing a civil action under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. 621 et seq. (ADEA) may differ from the period set out for the filing of civil actions under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., and the Rehabilitation Act of 1973, 29 U.S.C. 791. You may be foreclosed from filing a civil action on any claim brought under the ADEA if you fail to file within the limitations period applied by the Court in the jurisdiction in which your action is filed. 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. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work.

RIGHT TO REQUEST COUNSEL (Z0391)

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 THIRTY (30) CALENDAR DAYS of the date you receive the Commission's decision.

For the Commission:

Frances M. Hart
Executive Officer
Executive Secretariat

FN1. The election provisions of 5 U.S.C. 7121(d) have been construed in cases involving the jurisdiction of the Merit Systems Protection Board. The act of timely filing of a grievance was determined to be "irrevocable" in Jones v. Department of Health and Human Services, 622 F.Supp. 829 (D.C. III. 1985), and once the election is made, the other avenue is forever waived. Morales v. MSPB, 823 F.2d 536 (Fed. Cir. 1987); Rodriguez v. MSPB, 804 F.2d 673 (Fed. Cir. 1986).

FN2. The memorandum submitted by appellant purports to show that an agency labor relations specialist and the chief union steward deemed the grievance to be untimely. However, the memorandum documents a discussion that took place on December 20, 1990, over six months after the grievance was filed. The record indicates that appellant did not raise her contention to either the agency or the Commission prior to her request to reopen. The FAD on appellant's EEO complaint, dated November 2, 1990, had rejected the EEO complaint because a grievance on the same matter was at the first step of the grievance procedure when the EEO complaint was filed. The FAD therefore indicates that the agency viewed the grievance as timely.

FN3. Consistent with the statement in the submitted two-way memo, appellant is thus entitled to pursue her grievance in the negotiated grievance process. The Commission reminds the appellant that decisions on the grievance by the agency, an arbitrator, or the Federal Labor Relations Authority, may be appealed to the Commission. EEOC Regulation 29 C.F.R. 1613.231(b).