01A46039
01-05-2005
Clara D. West, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Clara D. West v. Department of the Army
01A46039
January 5, 2005
.
Clara D. West,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A46039
Agency No. ARMICOM04MAY0012
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated August 11, 2004, dismissing her 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. In her
complaint, complainant alleged that she was subjected to discrimination on
the bases of race (African-American), sex (female), and reprisal for prior
EEO activity when �the agency failed to comply with the Federal Labor
Relations Authority's decision to reevaluate her 1997-98 performance
appraisal in accordance with the AMCOM Regulation 690-5. The April
19, 2004 re-evaluation is a continuance of the Agency's discrimination
against her because of her race, sex, and reprisal.�
The record reveals that complainant filed a grievance in 1998 after
she was given a total rating of seventy-seven (77) on her 1997-1998
performance appraisal. In December 2001, an arbitrator voided
complainant's disputed performance appraisal and ordered the complainant's
prior appraisal extended. The arbitrator also awarded the complainant
backpay and ordered the agency to approve the complainant's application
for training. The agency appealed the arbitrator's decision to the
Federal Labor Relations Authority. In March 2003, the Federal Labor
Relations Authority issued a decision which set aside the arbitrator's
award and instructed the agency to reevaluate the complainant for the
disputed appraisal period. On April 19, 2004, the agency issued a revised
performance appraisal giving complainant a rating of seventy-nine (79).
The agency dismissed complainant's complaint pursuant to 29 C.F.R. �
1614.107(a)(4) for raising an allegation that has been raised in a
negotiated grievance procedure that permits allegations of discrimination.
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.
On appeal, complainant argues that the negotiated grievance procedure
in effect in July 1998 did not permit the adjudication of allegations of
discrimination. However, a review of the applicable negotiated agreement
reveals that allegations of discrimination may be raised in the grievance
process. Therefore, as the record indicates that complainant elected to
pursue the matter within the grievance procedure, we find that the agency
properly dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(4).
Accordingly, the agency's decision to dismiss the complaint is hereby
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
January 5, 2005
__________________
Date