0120093092
01-20-2010
Cynthia Horan, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Cynthia Horan,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120093092
Hearing No. 560-2008-00082X
Agency No. 200306572007102222
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 29, 2009, 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. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. In her complaint, complainant alleged that she
was subjected to discrimination on the bases of race (White) and age
(born in November 1949) when, on April 4, 2007, she received a written
reprimand from her supervisor for the charge of patient abuse.
The agency initially accepted the complaint for investigation.
Complainant requested a hearing before an EEOC Administrative Judge
(AJ). The agency moved for dismissal of the complaint noting that
complainant alleged the same matter in the union's grievance procedure.
The AJ granted the agency's motion and dismissed the complaint pursuant
to 29 C.F.R. � 1614.107(a)(4). The agency issued its FAD adopting the
dismissal.
Complainant appealed. Through counsel, complainant alleged that she
was not made aware of the fact that she could not pursue the matter
through both the EEO and grievance process. Complainant also argued
that the complaint was more than just the reprimand but also a claim of
harassment which was not raised before the grievance process.
The regulation set forth at 29 C.F.R. � 1614.107(a)(4) provides that
an agency may dismiss a complaint where the complainant has raised
the matter in a negotiated grievance procedure that permits claims of
discrimination. Although complainant asserted on appeal that she alleged
a claim of harassment, a review of her formal complaint only raises the
issue of the reprimand. Therefore, we find that complainant alleged
discrimination when she was issued the reprimand. In the instant case,
the record shows that complainant filed a grievance concerning the matter
identified in the complaint. Additionally, the record shows that under
the terms of the agency's union agreement, employees have the right to
raise matters of alleged discrimination under the statutory procedure
or the negotiated grievance procedure, but not both.
We also note that an election to proceed under a negotiated grievance
procedure is made by the filing of a written grievance irrespective of
whether the agency has informed the individual of the need to elect or
whether the grievance has actually raised an issue of discrimination. See
29 C.F.R. � 1614.301(a). Complainants elect the EEO process by filing
a formal EEO complaint prior to filing a timely written grievance. See
id. EEO counseling, intended to define the claims and promote informal
resolution prior to the formal complaint, does not constitute election
of the EEO process. The record indicates that complainant filed her
grievance on April 20, 2007. Complainant contacted the EEO counselor on
April 10, 2007, but did not file her formal complaint until May 2007.
As the record indicates that complainant elected to pursue the matter
within the grievance procedure, we find that the agency properly dismissed
complaint pursuant to 29 C.F.R. � 1614.107(a)(4).
Therefore, we affirm the agency's adoption of the AJ's decision to
dismiss the complaint pursuant to 29 C.F.R. � 1614.107(a)(4).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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 20, 2010
__________________Date
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0120093092
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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