Georgia A. Neal, Complainant,v.Paul H. O'Neill, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionOct 23, 2002
01A24160 (E.E.O.C. Oct. 23, 2002)

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