01a41011
04-15-2004
Jennifer K. Van Doren, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Jennifer K. Van Doren v. Department of the Navy
01A41011
April 15, 2004
.
Jennifer K. Van Doren,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A41011
Agency No. 03-00251-005
DECISION
In a final decision dated October 17, 2003, the agency dismissed
complainant's complaint for untimely EEO Counselor contact and on the
alternative grounds that the instant complaint addresses the same matter
as that raised in a negotiated grievance procedure. Upon review,
however, the Commission determines that the instant complaint is more
properly analyzed in terms of whether it states a claim pursuant to 29
C.F.R. � 1614.107(a)(1).
On December 2, 2002, complainant filed a formal complaint, alleging that
she was the victim of unlawful employment discrimination on the basis
of sex.
In its October 17, 2003 final decision, the agency characterized the
complaint as alleging that complainant was discriminated against on the
basis of sex when she was denied payment of overtime after she filed a
grievance under negotiated grievance procedures on January 29, 2002.
The Commission notes that, in her EEO Counselor's Report, complainant
claimed that she was turned down for requested overtime, and that after
she filed a grievance, it was denied. The EEO Counselor's report states
that complainant believes that she was discriminated against in that, on
September 24, 2002, she learned that a similarly situated male employee
also was denied requested overtime and filed a grievance regarding the
overtime denial, but that he received payment for the unworked overtime.
On appeal, complainant also asserts that �on September 24, 2002, I
learned from [a named employee] that he had been paid for overtime that
he did not work when he volunteered for overtime (as I had) and wasn't
selected.� Complainant also states that �I was not paid when I made
the same claim,� and that she �was not aware of the sex discrimination
nor did I allege sex discrimination until I learned [a named employee]
was treated differently on the same issue.�
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. See Wills
v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998);
Kleinman v. United States Postal Service, EEOC Request No. 05940585
(September 22, 1994). Here, the record shows that complainant's
complaint, properly stated, is that she was treated less favorably in
the grievance process than a similarly situated employee. The proper
forum for complainant to have raised her challenge to the results
of the grievance process was in the grievance process itself. It is
inappropriate to now attempt to use the EEO process to collaterally
attack decisions that occurred as part of the grievance process.
We therefore find that complainant's complaint fails to state a claim,
and is appropriately dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).
Accordingly, the agency's final decision dismissing complainant's
complaint is 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
April 15, 2004
__________________
Date