01A20163_r
12-06-2002
Melissa L. Kimps, Complainant, v. Harvey L. Pitt, Chairman, Securities and Exchange Commission, Agency.
Melissa L. Kimps v. Securities and Exchange Commission
01A20163
December 6, 2002
.
Melissa L. Kimps,
Complainant,
v.
Harvey L. Pitt,
Chairman,
Securities and Exchange Commission,
Agency.
Appeal No. 01A20163
Agency No. 17-01
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated September 18, 2001, 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.,
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. , and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
In her formal complaint, filed on May 29, 2001, complainant alleged
that she was subjected to a hostile work environment on the bases of
sex, age, and disability since August 1998. Examples of a hostile work
environment included complainant's assertion that on December 10, 1999,
she had an encounter with her supervisor; on September 8, 2000, her
supervisor deemed complainant to be absent without leave, and caused an
"erosion" of her GS-11 duties.
The record reflects that on September 17, 2001, complainant filed an
amendment to her complaint, alleging that her supervisor discriminated
against her by giving her an unsatisfactory rating on her performance
evaluation for the rating period of May 1, 2000 through April 30, 2001,
and by denying her a within-grade increase.
In its September 18, 2001 decision, the agency dismissed the complaint
pursuant to EEOC Regulation 29 C.F.R. � 1614.107(a)(4) on the grounds
that complainant had raised the same claims in a negotiated grievance
procedure that permitted allegations of discrimination. Specifically,
the agency concluded that complainant's claims are the same or like
and related to her grievances filed on December 14, 1999, November 27,
2000 and December 7, 2000.
On appeal, complainant through her representative argues that the agency
erred in dismissing her complaint because the claims she raised previously
in the negotiated grievance process were never decided by the agency.
The representative further argues that complainant never made a true
election of the negotiated grievance procedure as a forum for any of her
grievances because the agency denied one of two grievances she filed on
December 7, 2000 grievance. Furthermore, the representative states that
complainant's September 17, 2001 amendment concerning her performance
rating constitutes a new issue.
In response, the agency argues that complainant's other grievances
were not affected by the rejection of a December 7, 2000 grievance as
non-grievable.<1> The agency determines that complainant elected to
pursue her harassment and hostile work environment claims through the
negotiated grievance procedure.
Further, the agency requests that the Commission remand two of
complainant's instant claims, concerning her failure to receive a
performance award for her work in the rating year 2000; and her August
2001 performance appraisal for rating year 2001 and a related denial of a
within-grade increase for further processing. The agency determines that
these two claims are not identical to those complainant pursued through
the negotiated grievance procedure. Finally, the agency requests that
the Commission affirm its dismissal of complainant's remaining claims
of harassment and hostile work environment.
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. 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 this 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.
Pursuant to the agency's request in response to complainant's appeal, we
REVERSE the agency's dismissal of the two claims concerning complainant's
failure to receive a performance award for her work in the rating year
2000; and her August 2001 performance appraisal for rating year 2001,
along with a related denial of a within-grade increase. These claims
are REMANDED to the agency in accordance with the ORDER below.
Regarding the remaining claim, the record in the instant case contains a
copy of complainant's December 14, 1999, November 27, 2000, and December
7, 2000 grievances concerning her harassment and hostile work environment
claims. As part of the record, the agency submitted �Attachment 1" of
the MOU, which language does not expressly allow or prohibit the filing
of a grievance based on discrimination. Based on the broad definition
of what constitute a grievance, as well as the fact that grievances due
to discrimination are not expressly listed under Attachment 1 of the
MOU dealing with excepted grievance issues, we find that the grievances
filed by complainant does fall within the proscriptions outlined in 29
C.F.R. � 1614.301(a). See Hall v. Department of Agriculture, EEOC Appeal
No. 01996610 (March 7, 2001). Consequently, we find that by filing her
grievances which encompass the hostile work environment claim that is
raised in her formal complaint, complainant made an election of forum and
she cannot now file an EEO complaint in the EEO forum on the same matter.
In summary, the agency's decision to dismiss the claims regarding an
evaluation for the rating period of May 1, 2000 through April 30, 2001,
and the denial of a within-grade increase is REVERSED. Those claims are
REMANDED to the agency for further processing in accordance with the ORDER
below. The agency's decision to dismiss the remaining claim, relating
to a hostile work environment, is AFFIRMED for the reason stated herein.
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 (K0501)
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)
(1994 & Supp. IV 1999). 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 (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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
December 6, 2002
__________________
Date
1The record reflects that in April 2001, one
of two grievances that complainant filed on December 7, 2000, regarding
her failure to receive performance awards, was denied on the grounds that
the amount of a performance award is not a grievable matter under the
negotiated grievance procedure. The other grievance filed on December 7,
2000, alleged that she had been harassed and mistreated since 1998.