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JONES v. DEPT. OF HEALTH AND HUMAN SERVICES

November 22, 1985

RANDY JONES, PLAINTIFF,
v.
DEPARTMENT OF HEALTH AND HUMAN SERVICES, DEFENDANT.



The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

There is more than one ground for such dismissal,*fn1 but only the most fundamental need be addressed. Because this is an action against the United States, a government employee claiming discrimination must bring himself strictly within the terms defined by the sovereign in granting the right to sue. Sims v. Heckler, 725 F.2d 1143, 1145 (7th Cir. 1984), affirming this Court's decision to precisely that effect, 547 F. Supp. 752, 755-56 (N.D.Ill. 1982). That rule draws upon the long-familiar proposition that "limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied." Lehman v. Nakshian, 453 U.S. 156, 161, 101 S.Ct. 2698, 2702, 69 L.Ed.2d 548 (1981), quoting Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 273, 1 L.Ed.2d 306 (1957).

In this instance the applicable statute, 5 U.S.C. § 7121(d) (emphasis and bracketed inserts added),*fn2 establishes alternative tracks for an aggrieved' employee — but it specifically makes the election chosen by the employee irrevocable:

  An aggrieved employee affected by a prohibited
  personnel practice under section 2302(b)(1) of
  this title*fn3 which also falls under the
  coverage of the negotiated grievance procedure
  may raise the matter under a statutory procedure
  or the negotiated procedure, but not both. An
  employee shall be deemed to have exercised his
  option under this subsection to raise the matter
  under either a statutory procedure or the
  negotiated procedure at such time as the employee
  timely initiates an action under the applicable
  statutory procedure or timely files a grievance in
  writing, in accordance with the provisions of the
  parties' negotiated grievance procedure, whichever
  event occurs first. Selection of the negotiated
  procedure in no manner prejudices the right of the
  aggrieved employee to request the Merit Systems
  Protection Board ["MSPB"] to review the final
  decision pursuant to section 7702 of this title in
  the case of any personnel action that could have
  been appealed to the Board, or, where applicable,
  to request the Equal Employment Opportunity
  Commission ["EEOC"] to review a final decision in
  any other matter involving a complaint of
  discrimination of the type prohibited by any law
  administered by the Equal Employment Opportunity
  Commission.

Indeed the United States did not leave Jones' knowledge of his rights to chance, for the lengthy and specific February 4, 1985 letter advising Jones of the removal decision (the "Letter," Appendix I to this opinion) clearly identified the alternative appeal procedures and made plain their mutual exclusivity:

  If you wish to appeal this action, you have the
  option of either appealing in writing to the
  Merit Systems Protection Board (MSPB), or filing
  a written grievance at Stage 3 of the negotiated
  procedure. You may not use both procedures. To be
  considered, an appeal or grievance

  must be initiated within 20 calendar days after
  the effective date of this action. Both
  procedures allow you to raise any issue,
  including discrimination. You shall be deemed to
  have exercised your option at such time as you
  timely initiate an appeal or grievance under one
  of these procedures. The choice is irrevocable.

Then the Letter went on to detail not only those appeal procedures but also the other possible route of a formal discrimination complaint:

  An appeal to the MSPB containing an allegation of
  discrimination (as defined in MSPB Regulations
  1201.151(a)(2)) will not be processed
  concurrently with a discrimination complaint
  filed within the Department of Health and Human
  Services. Accordingly, if you believe that this
  action is based on such discrimination, you may:
      1. Either appeal to the MSPB within 20
    calendar days after the effective date of the
    action taken against you, raising the matter of
    discrimination in your appeal, (and otherwise
    complying with MSPB Regulations 1201.153), or
      2. File a discrimination complaint within the
    Department or a grievance under the negotiated
    procedure; but you must, if you wish to file a
    discrimination complaint, you may if you wish
    to file a grievance, first consult an Equal
    Employment Opportunity (EEO) Counselor within
    30 calendar days after you receive the
    decision. If you decide to file a formal
    discrimination complaint within the Department
    or a grievance under the negotiated procedure,
    you will still have the right to thereafter
    request the MSPB to review a decision or issue
    a decision as appropriate:
      a. Within 20 calendar days after you receive
    the Department resolution or final decision on
    your discrimination complaint or grievance, or
      b. Within 1 year after you filed your formal
    discrimination complaint within the Department
    when the Department has neither resolved your
    discrimination complaint nor issued a final
    decision on your formal discrimination
    complaint within a period of 120 calendar days.
  Should you have any questions concerning your
  rights or procedures involved, you and/or your
  representative may contact the Personnel Branch,
  Employee Relations Section, telephone number
  353-1648.

On the very next day after the Letter was written, Jones filed a grievance under the applicable collective bargaining agreement (one of the avenues spelled out by the Letter). His grievance was denied at the prearbitration stage March 8, 1985. No arbitration was then requested by the union. Jones did not file a timely appeal to the MSPB,*fn4 nor did he bring suit within 30 days after the March 8 grievance denial as 42 U.S.C. § 2000e-16(c) provides (see 5 C.F.R. § 1201.158).*fn5 Instead he filed a discrimination ...


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