01A43978_r
02-02-2005
Kimberly K. Parks, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Kimberly K. Parks v. Department of the Army
01A43978
February 2, 2005
.
Kimberly K. Parks,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A43978
Agency Nos. ARKNOW02OCT0033, ARKNOX03JAN0040
DECISION
Complainant filed a timely appeal with this Commission concerning her
two complaints 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.
Complaint One
Complainant filed a formal complaint under Agency Number ARKNOX02OCT0033
dated November 25, 2002, alleging that she was subjected to discrimination
and a hostile work environment on the bases of race (White) and color
(white) when:
Complainant was threatened by African-American coworkers in the employee
lounge on November 1, 2002;
Complainant was replaced by an African-American employee in her lead
position for one day on August 8, 2002;
Complainant's performance rating was downgraded on August 9, 2002;
Complainant was reassigned to another room and not allowed to perform
her lead duties from September 9, 2002, through November 1, 2002;
Complainant was not promoted to the position of lead program assistant
until November 15, 2001, after applying five times while African-Americans
were promoted into these positions;
Complainant was falsely accused by her supervisor of leaving children
unattended and not completing paper work between November 2001, through
June 2002; and
Complainant's supervisor allowed her to be abused daily by an
African-American child from November 15, 2001, through August 1, 2002.
The agency contends that a fact finding conference was scheduled to
investigate complainant's complaint on July 16, 2003. The agency states
that complainant and her attorney met with the EEO Investigator prior to
the convening of the fact finding conference and complainant voluntarily
withdrew her complaint prior to the initiation of the investigation.
The agency explains that as a result it closed this complaint.
Complainant filed the present appeal requesting that Agency Case Number
ARKNOX02OCT0033 be reopened. In her appeal she alleges that she was
assaulted in November 2001, by an employee who was under her supervision.
She also claims that another employee harassed her and that despite
filing grievances on these matters, management failed to respond to the
harassment she suffered.
In response to complainant's appeal, the agency stated that it properly
closed Agency Case Number ARKNOX02OCT0033 on the grounds that complainant
voluntarily withdrew this case. The agency notes that she signed the
withdrawal in the presence of her attorney on July 16, 2003. The agency
notes that complainant does not argue on appeal that her withdrawal
was involuntary.
The record contains a July 16, 2003 statement signed by complainant
stating that she is withdrawing her complaint under Agency Case Number
ARKNOX02OCT0033.
The record contains a signed June 24, 2004 statement from the agency
representative in ARKNOX02OCT00330 stating that complainant's attorney
informed him that complainant signed a withdrawal of her complaint just
prior to the beginning of the fact finding conference regarding the
investigation of the complaint.
Upon review of the record, we find that the agency properly closed Agency
Case Number ARKNOX02OCT0033 on the grounds that complainant withdrew
this complaint via her July 16, 2003 letter. We note that on appeal
complainant is not claiming that the withdrawal was not voluntary or
not knowingly entered into.
Complaint Two
Complainant filed a second formal complaint dated February 21, 2003,
under Agency Number ARKNOX03JAN0040 alleging that she was discriminated
against on the basis of reprisal when:
The Military Police (MP) and the Criminal Investigation Division (CID)
falsely arrested complainant for child abuse/assault on December 9, 2002;
Complainant was separated from the agency effective January 17, 2003.
In a letter dated March 11, 2003, the agency accepted issue (1) for
investigation and dismissed issue (2) on the grounds that complainant
elected to pursue the issue of her separation through the grievance
process. In this letter, the agency informed complainant that she must
bring the allegations of discrimination to the attention of the union
and that she has the right to appeal the final grievance decision on
the discrimination issue to the Commission.
Subsequently, on April 27, 2004, the agency dismissed issue (1) of Agency
Number ARKNOX03JAN0040 pursuant to the regulation set forth at 29 C.F.R. �
1614.107(a)(1), for failure to state a claim. The agency claimed that
this issue constituted a collateral attack on a criminal proceeding
filed with the U.S. District Court, Western District of Kentucky, Case
No. 3:03M-72 and thus, is outside the Commission's jurisdiction.
Complainant filed the present appeal regarding the agency's decision to
dismiss her complaint. Complainant states that she cannot be gainfully
employed because of her employment record with the agency. She claims
that she has been harmed by the separation since she lost wages, was
without medical insurance and suffered stress. Additionally, complainant
alleges that she was assaulted in November 2001 by an employee who was
under her supervision. She also claims that another employee harassed
her and that despite filing grievances on these matters, management failed
to respond to the harassment she suffered. Complainant also states
that since her separation she has found out that there were other Lead
Teachers and Program Assistants that did not follow the reporting of a
head injury who were not separated as she was.
In response to her appeal, the agency reiterated its position that
Agency Case Number ARKNOX02JAN0040 was properly dismissed. With regard
to issue (1), the agency notes that the United States Attorney for the
U.S. District Court, Western District of Kentucky brought criminal charges
against complainant in Information No. 3:03M-72 for striking a minor child
in the head on December 9, 2002. The agency notes that these charges were
dismissed by the court on May 8, 2003. The agency states that in Agency
Case Number ARKNOX02JAN0040, complainant seeks review of the falseness
of those criminal charges which led to her alleged wrongful arrest.
The agency argues that this is an impermissible collateral attack on the
prior criminal proceeding. Additionally, the agency noted that issue (2)
was dismissed due to her filing a grievance over the same matter under
the negotiated grievance procedure. The agency notes that complainant
never appealed the dismissal of the allegation relating to her separation.
The record contains a January 15, 2003 Step 1 grievance in which
complainant alleges that her separation was unfair. The record contains
an undated letter from the agency sustaining complainant's separation
for failure to adhere to performance and conduct expectations by not
properly reporting a head injury.
The record contains an indictment filed by the United States Attorney in
the U.S. District Court Western District of Kentucky under Information
Number 3:03M-72 alleging complainant assaulted a minor on December 9,
2002, at the agency. The record contains an Order of Dismissal on
Information Number 3:03M-72 which dismissed the case without prejudice
on May 8, 2003.
Upon review, the Commission finds that the agency properly dismissed
Agency Case Number ARKNOX03JAN0040. The Commission finds issue (1)
constitutes a collateral attack on another proceeding. 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 21, 1994).
The appropriate forum for complainant to challenge the falseness of the
arrest was within the criminal proceeding. Therefore, we find that issue
(1) was properly dismissed for failing to state a claim.
With regard to issue (2), we find that this issue was properly dismissed
by the agency pursuant to 29 C.F.R. � 1614.107(a)(4), for raising the
same matter in a negotiated grievance procedure that permits allegations
of discrimination. 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 claims
of discrimination to be raised in a negotiated grievance procedure, a
person wishing to file a complaint or 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 record contains a copy of the collective bargaining agreement which
permits claims of discrimination to be raised in the agency's negotiated
grievance procedure or the statutory (EEO) process, but not both. Thus,
we find that complainant elected to raise the issue of her removal in
the negotiated grievance procedure, and now is precluded from raising
the same matter in the EEO process.
Accordingly, the agency's decision dismissing Agency Case Number
ARKNOX03JAN0040 is AFFIRMED. The appeal regarding Agency Case Number
ARKNOX02OCT0033 is DISMISSED.
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
February 2, 2005
__________________
Date