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

Equal Employment Opportunity CommissionMar 28, 2001
01A10892_r (E.E.O.C. Mar. 28, 2001)

01A10892_r

03-28-2001

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


Josephine A. Thibault v. Department of the Treasury

01A10892

March 28, 2001

.

Josephine A. Thibault,

Complainant,

v.

Paul H. O'Neill,

Secretary,

Department of the Treasury,

Agency.

Appeal No. 01A10892

Agency No. 00-4224

DECISION

Complainant timely appealed the agency's October 12, 2000 decision to

dismiss 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. In her

complaint, complainant alleged that she was subjected to discrimination

on the bases of sex (female), disability, and in reprisal for prior EEO

activity when she was not selected for the position of Revenue Officer,

GS-1169-11.

The agency dismissed the complaint for stating the same matter raised in

a prior grievance. On appeal, complainant argues that she did not file

a grievance, but rather took part in an informal meeting that did not

constitute a formal grievance filing. Complainant provided a memorandum

signed by union and management officials, describing this informal

grievance process. The memo states that the process was designed

�to encourage informal resolution of grievances. . . . When [the

union] presents management with the . . . form [used to initiate the

informal process], it constitutes notice that a potential grievance

exists. . . . The signing of the form in no way implies management's

agreement as to grievability, timeliness or other issues.�

The agency may dismiss complaints raised in a negotiated grievance

procedure that permit claims of discrimination to be raised. See 29

C.F.R. � 1614.107(a)(4). The collective bargaining agreement must allow

employees to raise matters of alleged discrimination under the statutory

(EEO) procedure or under the negotiated grievance procedure, but not both.

An election to proceed under a negotiated grievance procedure is made by

the filing of a timely written grievance. 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.

In the present complaint, complainant never filed a written grievance

with the agency. Complainant sought an informal meeting with the agency,

and the agency provided a written response. The agency's response does

not refer to the meeting as a grievance filing, and the record contains

no evidence that complainant proceeded to subsequent �steps� in the

grievance process. Further, management and union described such meetings

in a memo as a �potential grievance.� The Commission finds, given the

unique circumstances described above, the informal meeting is not a

grievance election. Therefore, the Commission finds that complainant

did not elect to pursue her complaint under the grievance process.

CONCLUSION

Accordingly, the agency's dismissal is REVERSED, and the complaint is

REMANDED for further investigation.

ORDER (E0900)

The agency is ordered to process the remanded claims in accordance with

29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant

that it has received the remanded claims within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue

to complainant a copy of the investigative file and also shall notify

complainant of the appropriate rights within one hundred fifty (150)

calendar days of the date this decision becomes final, unless the matter

is otherwise resolved prior to that time. If the complainant requests a

final decision without a hearing, the agency shall issue a final decision

within sixty (60) days of receipt of complainant's request.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

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

March 28, 2001

__________________

Date