01a05459
01-05-2001
Doris Grice, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Doris Grice v. Department of Veterans Affairs
01A05459
January 5, 2001
.
Doris Grice,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A05459
Agency No. 990138
DECISION
Doris Grice (complainant) filed a timely appeal with this Commission from
an agency's final order dated July 28, 2000, adopting an Administrative
Judge's dismissal of 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 Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et
seq.<1> In her complaint, complainant alleged that she was subjected
to discrimination on the bases of race (Black), color (dark complexion),
sex (female) and disability (back injury) when:
on November 11 and 12, 1998, she was assigned to a high activity level
patient, which did not take into account the work restrictions placed on
her by her physician as a result of a work related injury to her back;
and
on November 6, 1998, she was issued a letter informing her that
effective November 20, 1998, she was to be separated from her employment.
She considered this letter to also constitute a failure to hire and a
failure to promote, as she had applied for permanent positions.<2>
The record reveals that during the relevant time, complainant was
employed as a nurse in a temporary position at the agency's Birmingham,
Alabama Medical Center. Believing she was a victim of discrimination,
complainant sought EEO counseling and subsequently filed a formal
complaint on December 30, 1998. At the conclusion of the investigation,
complainant was provided a copy of the investigative report and requested
a hearing before an EEOC Administrative Judge (AJ). The AJ dismissed the
complaint pursuant to 29 C.F.R. � 1617.107(a)(4), finding that complainant
raised the same matters in a negotiated grievance procedure that permitted
allegations of discrimination. The agency adopted the AJ's decision.
Complainant raises no contentions on appeal. The agency asks that its
Final Order be affirmed.
FINDINGS AND ANALYSIS
The record establishes that complainant filed a grievance under a
negotiated grievance procedure that permits allegations of discrimination.
In this grievance, complainant raised the issue of her termination.
Commission regulations require the dismissal of such claims. See 29
C.F.R. � 1614.107(a)(4). Accordingly, the AJ's decision to dismiss the
claim involving complainant's termination from her temporary position
was proper and is AFFIRMED.
However, the record does not establish that the grievance involved
complainant's claim that she was required to do assignments which violated
her medical restrictions due to her race, color, sex and disability.
Complainant claimed that this issue was not part of the grievance.
Moreover, there is no evidence in the record to establish that the
grievance procedure addressed this issue. The Third Step Grievance
letter merely notes that complainant's separation from employment
was sustained, after evidence regarding that separation was reviewed.
In its Final Order, the agency itself noted that �at least the central
claim of the complaint, the termination of complainant's probationary
employment, had been raised in a grievance....� We find, therefore,
that complainant's claim that she was discriminated against when she was
assigned work outside of her medical restrictions was not raised during
the negotiated grievance procedure.
Commission regulations allow for the dismissal of claims that are
inextricably intertwined with a claim that was already raised in a
negotiated grievance procedure that permits allegations of discrimination
on the theory that it is best to raise and address such claims during the
same procedure. See Marchini v. Department of Agriculture, EEOC Request
No. 05930880 (January 21, 1994); Bivens v. Department of the Navy , EEOC
Request No. 05890476 (April 30, 1990); Soto v. Department of Justice,
EEOC Appeal No. 01943815 (November 14, 1995). Claims are inextricably
intertwined if, for example, the factual issues to be resolved in each
are the same. See Chandhok v. Department of Commerce, EEOC Request
No. 05930881 (February 24, 1995) (complainant's claims are inextricably
intertwined because the factual issue to be resolved in determining the
propriety of his termination, raised in a negotiated grievance procedure,
is the same factual issue that must be addressed in resolving his EEO
complaint, i.e., whether his performance was satisfactory).
After a careful review of the record, we find that the claims in the
case at hand are not inextricably intertwined. The issue of whether
complainant was required to work outside her medical restrictions due to
a discriminatory motivation after she was notified of her termination
does not involve the same factual determinations as those involved in
determining the propriety of her termination. The agency presented no
argument or evidence to suggest that the claims are otherwise inextricably
intertwined. Accordingly, the agency's decision to dismiss claim 1 was
improper and is hereby VACATED. The claim is REMANDED for scheduling
of a hearing in accordance with the ORDER below.
ORDER
Claim 1 is remanded to the Hearings Unit of Birmingham District EEOC
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 (K0900)
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 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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
(R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 5, 2001
Date
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 The Counselor's report and formal complaint went into great detail as
to several allegations. After reading both these documents, the Regional
EEO officer who accepted the complaint for investigation characterized
the complaint as raising the two incidents noted above. Complainant did
not dispute that these are her claims. Moreover, the Counselor's report
and complainant's affidavit establish that the incidents of �failure to
promote,� �failure to hire,� and �termination/removal,� each of which was
checked by complainant, refer to the November 6, 1998 removal letter.
It is also clear that complainant checked �time and attendance� because
it was cited as a factor in the removal. Finally, we find that the
incidents listed as �assignment of duty� and �working conditions� were
intended by complainant to relate to her allegation that she was assigned
duties outside her medical restrictions.