Summary
explaining that this election procedure is a "special" rule governing claims of discrimination brought by federal employees who are covered by collective bargaining agreements
Summary of this case from Fernandez v. RidgeOpinion
No. 02 Civ. 7615 (TPG).
August 24, 2004
Opinion
This is an employment discrimination action brought by plaintiff Shirley Wright against defendant John W. Snow, Secretary of the Treasury. Plaintiff alleges that she was denied a promotion within the Internal Revenue Service ("IRS") as a result of discrimination on the basis of race and sex, in violation of Title VII of the Civil Rights Act of 1964.
Defendant moves for summary judgment. The motion is granted.
Facts
Plaintiff is an African-American woman who began working for the IRS on September 14, 1987. Except where otherwise noted, at all times relevant to the instant action plaintiff was employed as a Grade 9 Revenue Officer.
Plaintiff received annual performance evaluations from the IRS. At some point in 1992 plaintiff received a performance evaluation for 1991-1992, which evaluation plaintiff believed to be unjustifiably negative. Plaintiff filed a grievance with the National Treasury Employees Union pursuant to the National Agreement Between Internal Revenue Service and National Treasury Employees Union ("NORD V"). The NORD V grievance procedure allows four levels of grievance, with the final level being heard by the District Director.
Plaintiff's grievance regarding her 1991-1992 performance review was taken through all four levels. At the conclusion of that process, there was a finding in favor of plaintiff and plaintiff was granted performance awards as a remedy for the 1991-1992 evaluation. She was supposed to receive three awards, valued at $550 each, in 1995, 1996, and 1997. Plaintiff only received the payments in 1995 and 1996. However, plaintiff received certificates for all three awards. Plaintiff made inquiries with personnel employees about receiving the final payment, and was told that, regardless of whether she was paid, her employment record would reflect the fact that she had received the award. Plaintiff testified in her deposition that based on that representation she did not pursue the 1997 payment.
In 1998 a number of Grade 11 Revenue Officer positions became open at the IRS. At the time, plaintiff was a Grade 9 Revenue Officer working at the IRS's Manhattan office. Plaintiff applied for the Grade 11 promotion on June 15, 1998. There apparently were Grade 11 positions available in a number of New York-area offices, including the Manhattan, Bronx, Staten Island, and White Plains offices. However, plaintiff applied only for the Manhattan office. Plaintiff testified at her deposition that this was the only opening of which she was aware at the time of her application.
The selection process for the Grade 11 promotion was governed by guidelines set forth in the NORD V agreement, a portion of which was submitted on the instant motion. In brief, applicants for the promotion submitted an application package that consisted of an application form, known as a Form 4536, an employment history questionnaire, and the applicant's most recent performance evaluation. No interviews were conducted as part of the selection process. A three-person panel would, based on analysis of the application packages, give candidates numerical scores. In addition to a maximum of 50 points for their application packages, candidates could receive additional points for performance awards or certain other factors. After the applicants were scored, they were ranked and the record was and forwarded to the Division Chief for Collections, who made the final promotion decisions. The NORD V guidelines state that applicants are selected for position vacancies in rank order based on their scores.
Plaintiff received a total score of 43 from the panel. Plaintiff's scoring sheet, which was submitted on the motion, reflects that she received a score of 42 on her application package, and a one-point increase for her 1996 performance award. Plaintiff was not credited for any other performance awards.
On September 25, 1998 the Grade 11 promotions were announced, and plaintiff learned that she had not been selected. Fifteen individuals were selected for promotions. Six were selected for the Manhattan office, and nine for the other three offices.
The individuals selected for the Manhattan office all scored 44 or higher, and had the top six scores among all candidates. There were three white males, one white female, one African-American male, and one African-American female.
Of the individuals who received Grade 11 promotions to the Bronx, Staten Island, and White Plains offices, two were white males, two were African-American males, one was a Hispanic female, and four were African-American females. The record contains scores for only five of those individuals. Three of those five scored below 43.
On September 28, 1998 plaintiff filed a grievance with the union to obtain the Grade 11 promotion that she was denied. Plaintiff complained that she should have received higher marks in her 1997 performance evaluation, which she had submitted in her Grade 11 promotion application package. She requested that she receive retroactive appointment to the Grade 11 position. Plaintiff also requested as part of her grievance that she be allowed to review the application packages of individuals who were accepted for the Manhattan Grade 11 promotion, and of other individuals who were denied the promotion. Plaintiff also testified that at that time, immediately following her nonselection, she did not know that her performance awards for 1995 and 1997 had not been considered in the promotion selection process. Plaintiff has testified that at that time she "had no evidence of discrimination," and that she "didn't think about discrimination at that point."
On October 21, 1998 a first-level meeting was held on plaintiff's grievance. An October 27, 1998 memorandum from plaintiff's Group Manager, Jeff Payton, denied plaintiff's grievance. The memorandum stated that plaintiff could appeal the decision.
Plaintiff did appeal, and on November 19, 1998 a second-level grievance meeting was held. A December 17, 1998 memorandum from plaintiff's Assistant Division Chief, Kittie Hill, again denied plaintiff's grievance. The memorandum stated that plaintiff's application package had been reviewed for accuracy by plaintiff's union steward and a representative from management, and that no inaccuracies in plaintiff's ranking had been identified. The memorandum also denied plaintiff's objection to her 1997 performance evaluation. The memorandum notified plaintiff of her right to appeal.
On or about December 23, 1998 plaintiff had the opportunity to review her application package, as well as the application packages of several individuals who were selected for the Manhattan Grade 11 promotion. With respect to her own application, plaintiff observed that her 1995 and 1997 performance awards had not been counted. She also testified that the copy of her Form 4536 that she examined had been altered.
With respect to other applications, plaintiff testified that the application of John Carpenter, a white male, was missing a Form 4536. She also testified that three applicants, Michael McDuffie and Roderick Smedley, and Ernestine Smith, had submitted documents referred to as "ad hoc evaluations." According to plaintiff's testimony, these evaluations raised the applicants' scores above what they would otherwise have received based on the annual performance evaluations they had submitted. Plaintiff testified that she had been denied the opportunity to receive an ad hoc evaluation. McDuffie and Smedley are African-American males, and Smith is an African-American female.
In addition to these problems, plaintiff testified that the IRS had, without explanation, denied her access to application packages of two individuals who had received Grade 11 promotions in Manhattan. Those individuals were two of the three white men who received the Manhattan positions.
Plaintiff testified that, following her review of the promotion application packets, she developed the belief that she had been denied the Grade 11 promotion as a result of discrimination against her as an African-American woman. On January 29, 1999 plaintiff contacted an EEOC counselor regarding her allegations of discrimination and filed a complaint on that date with the EEOC. The relief plaintiff sought was retroactive appointment to the Grade 11 position.
On February 14, 1999 plaintiff took a temporary position as a Grade 11 Management Analyst. This promotion was, according to plaintiff's testimony, in compensation for her nonselection in September 1998. The temporary promotion continued until April 11, 1999.
Plaintiff took her grievance regarding the Grade 11 Revenue Officer position to the third level. On February 25, 1999 a third-level meeting was held. On March 19, 1999 plaintiff received a memorandum from Assistant District Director, David Robison. The memorandum stated that plaintiff sought appointment to the Grade 11 position based on her complaint that her 1997 performance evaluation should have been higher. The memorandum denied plaintiff relief on this ground. The memorandum went on to state:
At our meeting you stated that you had two awards. However, management only counted one of these awards and as a result you ranked number 43.00 on the Highly Qualified list instead of number 44.00, which would have placed you on the Best Qualified list. After reviewing the Revenue Officer vacancy announcement, I agree with you. The ranking panel only considered on of your performance awards.
The remedy was that plaintiff would be granted priority consideration for the next Grade 11 Revenue Officer position that became available. The memorandum informed plaintiff of her right to appeal the decision.
Plaintiff apparently did not appeal the third-level grievance decision. A May 14, 1999 letter of Janine Davitan, Assistant Counsel to the National Treasury Employees Union, addressed an inquiry from plaintiff's local union chapter as to why plaintiff's grievance was not pursued past the third level. The letter stated:
As you know, both case law and NORD V are very clear that the remedy for being improperly ranked on a BQ [Best Qualified list], or, as was the case here, erroneously not placed on the BQ, is priority consideration. No other remedy is allowable by law, unless allegations of discrimination are made and proven. Here, no such allegations were made. . . .
Accordingly, the Agency offered Ms. Wright the full remedy for her grievance.
On April 30, 1999 an EEOC counselor met with plaintiff for a final interview, and a final report was filed by the counselor on May 7, 1999. The report summarized plaintiff's allegations of race and gender discrimination in connection with the Grade 11 promotion. Plaintiff did not pursue her EEOC action beyond this stage.
In August 1999 plaintiff received a promotion to Grade 11 Revenue Officer.
On September 20, 1999 plaintiff filed the instant action. The amended complaint alleges that the above-described discrepancies in the application process for the Grade 11 promotion were a result of the IRS's practice of discriminatorily promoting white men above non-Caucasian employees. Plaintiff seeks back pay for a Grade 11 promotion dating to September 1998, as well as other damages.
Discussion
Defendant argues that plaintiff is jurisdictionally barred from pursuing her Title VII claim in this Court because she elected to grieve denial of the Grade 11 promotion through union channels. Because the Court agrees that plaintiff is barred from bringing the instant action, it will not reach defendant's additional arguments regarding the timeliness of plaintiff's invocation of EEOC remedies, and on the merits of plaintiff's claims.
Federal law and EEOC regulations set forth special rules governing claims of discrimination brought by federal employees who are covered by collective bargaining agreements. Under 5 U.S.C. § 7121, an employee claiming to have been discriminated against in violation of Title VII, whose claim may be brought under a negotiated grievance procedure, "may raise the matter under a statutory procedure or the negotiated procedure, but not both." 5 U.S.C. § 7121(d). EEOC regulations further specify:
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 [pertaining to the rules for filing with the EEOC] or the negotiated grievance procedure, but not both. . . . An election to proceed under a negotiated grievance procedure is indicated by the filing of a timely written grievance. 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 of whether the grievance has raised an issue of discrimination. Any such complaint filed after a grievance has been filed on the same matter shall be dismissed without prejudice to the complainant's right to proceed through the negotiated grievance procedure including the right to appeal to the Commission from a final decision as provided in subpart D of this part. The dismissal of such a complaint shall advise the complainant of the obligation to raise discrimination in the grievance process and of the right to appeal the final grievance decision to the Commission.29 C.F.R. § 1614.301(a) (emphasis added). It is undisputed that the above provisions apply to plaintiff, because plaintiff's collective bargaining agreement, NORD V, permits allegations of discrimination to be raised in the negotiated grievance procedure. If a negotiated grievance procedure is used, this bars a "statutory procedure," and thus bars an action under Title VII.See 5 U.S.C. § 7121(d). The reference in 29 C.F.R. § 1614.30 to a "complaint . . . under this part" being barred refers to a complaint to the EEOC followed by a Title VII lawsuit.
Under 29 C.F.R. § 1614.30(a), a key issue in deciding whether plaintiff may invoke statutory remedies for alleged discrimination, after previously invoking negotiated grievance procedures, is whether the claims pertain to the same "matter." If a complaint is filed with the EEOC pertaining to the same "matter" as has been previously pursued through a grievance procedure, the plaintiff is barred from pursuing the EEOC claim, "irrespective of whether . . . the grievance has raised an issue of discrimination." Every court that has considered the issue has concluded that the word "matter" in 5 U.S.C. § 7121 and 29 C.F.R. § 1614.301 refers to the conduct underlying a plaintiff's claim, as opposed to the legal allegations in the claim. See, e.g., Guerra v. Cuomo, 176 F.3d 547, 550-51 (D.C. Cir. 1999);O'Dwyer v. Snow, 00 Civ. 8918, 2004 WL 444534, at *9 (S.D.N.Y. Mar. 10, 2004); Macy v. Dalton, 853 F. Supp. 350, 353 (E.D. Cal. 1994). Thus in O'Dwyer, the court concluded that an IRS employee was barred from pursuing her claim of sex discrimination under Title VII where she had previously grieved through union procedures the underlying incidents — namely, denial of a promotion and negative evaluations — that gave rise to her discrimination claim. The court concluded that plaintiff's statutory claim was barred notwithstanding the fact that she had not actually raised the issue of discrimination in her previous grievances.
Based on the above authorities, the Court in the present case concludes that the "matter" raised by plaintiff in her lawsuit is the same "matter" that was already raised in negotiated grievance procedures, and that plaintiff is therefore barred from bringing the instant action under Title VII.
Plaintiff unquestionably invoked the NORD V grievance procedure on September 28, 1998 when she filed her union grievance seeking a retroactive grant of the Grade 11 promotion that she had been denied on September 25. Indeed, she followed the grievance procedure through to the third tier of review, and ultimately was granted priority consideration for the Grade 11 promotion, although her request for retroactive relief was denied. She had a right to seek fourth-level review, which she did not pursue.
On January 29, 2003 plaintiff filed a complaint with the EEOC, seeking a retroactive grant of the Grade 11 promotion, but this time alleging race and sex discrimination. At the time of this filing, plaintiff's union grievance was still wending its way through administrative channels; indeed, the third-level meeting that took place on February 25, 1999 had not yet been held.
Plaintiff contends that she was entitled to file her complaint with the EEOC because she never raised a claim of discrimination in her union grievance proceedings. Plaintiff argues that she did not even know that there were grounds to raise a claim of discrimination until she examined the Grade 11 promotion applications on December 23, 1998, three months after her union grievance was filed. By grieving the promotion denial, plaintiff argues, she won the right to examine the applications, thereby learning of defendant's discriminatory conduct. Thereafter, plaintiff contends, she was entitled to pursue her claim of discrimination through separate channels.
Plaintiff's argument ignores the plain language of § 1614.301, which states that a complaint pertaining to the same matter grieved through union proceedings may not subsequently be filed with the EEOC regardless of whether the grievance actually raised the issue of discrimination. In any event, plaintiff's contention that her late discovery of the basis for her discrimination claims entitled her to initiate EEOC proceedings is unpersuasive as a factual matter, since she had reviewed the promotion applications, and undergone EEOC counseling, by the time of the third-level grievance meeting. Plaintiff offers no explanation of why she did not, at that point, raise her discrimination claims at least at this stage in the grievance proceedings.
Plaintiff was not entitled to initiate EEOC proceedings and is not entitled to bring this Title VII action. The record on the present motion does not allow the Court to ascertain what, if any, remedies may remain at this time for plaintiff under the NORD V negotiated grievance procedures. Nonetheless, the Court advises plaintiff, pursuant to 29 C.F.R. § 1614.301, that dismissal is without prejudice to her right to proceed through the negotiated grievance procedure, including the right to appeal to the EEOC from a final decision on her grievance.
Conclusion
Defendant's motion for summary judgment is granted. The complaint is dismissed without prejudice to the pursuit of avenues of relief available to plaintiff through negotiated grievance procedures.
SO ORDERED.