01A24160
10-23-2002
Georgia A. Neal, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Georgia A. Neal v. Department of the Treasury
01A24160
October 23, 2002
.
Georgia A. Neal,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A24160
Agency No. 02-2260
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 26, 2002, 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 (African-American),
sex (female), and age (D.O.B. 5/1/45) when:
Three months after she was promoted to the position of Computer
Specialist, GS-0334-09, she was downgraded to her previous position and
forced to repay the money she earned in the higher graded position.
In a formal complaint filed on June 8, 2002, complainant claimed that
she was subjected to discrimination on the bases of race, sex and age
when she was downgraded and forced to repay the money she earned in the
higher graded position. The agency dismissed complainant's complaint
pursuant to 29 C.F.R. � 1614.107(a)(4), finding that complainant had
raised the matters at issue in a negotiated grievance procedure that
permits allegations of discrimination. The agency noted, and the record
reflects, that complainant filed a grievance regarding the same concerns
raised in her EEO complaint prior to filing the instant complaint.
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 allegations of discrimination
to be raised in a negotiated grievance procedure, a person wishing
to file a complaint or a 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. The regulation provides
that the election is indicated by the filing of a written complaint or
timely grievance, whichever is done first. The regulation also provides
that 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 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.
In the present case, the record indicates that complainant is covered by
a collective bargaining agreement that permits claims of discrimination
to be raised in the negotiated grievance procedure. Complaint filed a
grievance on December 17, 2001, regarding her downgrade and repayment
of money and filed the instant complaint on June 8, 2002, regarding the
same issue. Accordingly, the agency's decision dismissing complainant's
complaint is hereby AFFIRMED for the reasons set forth herein.
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
October 23, 2002
__________________
Date