Agency.

Equal Employment Opportunity CommissionMay 15, 2003
02A20008_r (E.E.O.C. May. 15, 2003)

02A20008_r

05-15-2003

Agency.


Wendy Davis v. Department of Health and Human Services

02A20008

May 15, 2003

.

Wendy Davis,

Grievant,

v.

Tommy G. Thompson,

Secretary,

Department of Health and Human Services,

Agency.

Appeal No. 02A20008

DECISION

On March 5, 2002, pursuant to 29 C.F.R. � 1614.401(d), grievant filed the

instant appeal with the Commission, concerning an arbitration decision

on her grievance dated August 21, 2001. The Commission accepts the

appeal.<1> 29 C.F.R. � 1614.405.

The Commission's regulations, in conjunction with 5 U.S.C. � 7121 (d)

of the Civil Service Reform Act, provide that where a grievance procedure

permits a claim of discrimination to be raised and considered, an employee

wishing to raise an allegation of discrimination must elect the forum in

which to pursue the matter. 29 C.F.R. � 1614.301(a). Such a complaint

of alleged employment discrimination may be raised under either the

EEO statutory process or the negotiated grievance procedure, but not

both. Id. If the employee elects to raise an issue of discrimination in

the negotiated grievance procedure, the employee has the right to appeal

the agency's final decision on the grievance concerning the discrimination

issue to the Commission. 29 C.F.R. � 1614.401(d). The Commission's

regulations provide that a grievant may appeal to the Commission from a

final decision of the agency, the arbitrator, or the Federal Relations

Authority on a grievance when an issue of employment discrimination was

raised in a negotiated grievance procedure that permits such issues to

be raised. Id.

The record reflects that complainant filed a grievance on June 7, 2000.

Therein, complainant raised claims of discrimination based on race

(African-American). Furthermore, the record demonstrates that a hearing

on the grievance was conducted before an Arbitrator, who rendered a

decision on August 21, 2001. In that decision, the Arbitrator determined

that complainant raised the following claims of discrimination:

Complainant's Special Assistant position is improperly classified as

a GS-13, and should instead be up-graded to a GS-14 position;

When complainant attempted to obtain a desk audit for the purpose of

up-grading her Special Assistant position from a GS-13 to a GS-14, her

supervisor refused to approve the position description she prepared,

and otherwise failed to assist complainant in obtaining the position

up-grade;

For many years, complainant performed duties commensurate to certain

white employees in GS-14 positions, but encumber only a GS-13 position

because of the agency's on-going refusal to up-grade her position; and

Complainant was not selected for the GS-14 position of Public Health

Analyst, in favor of a less qualified younger white female.<2>

Regarding claim 1, the Arbitrator determined that it constituted a

position classification dispute, and as such, was not a proper matter

for arbitration under the prevailing union agreement. Furthermore, the

Arbitrator also determined that claims 2 and 3, though couched as claims

of continuing discrimination because of �unequal pay,� are inextricably

intertwined with the position classification dispute of claim 1, and so

also cannot be a subject of the instant arbitration. For this reason,

the arbitrator specifically declined to render a decision on claims 1,

2, and 3.

Regarding claim 4, the Arbitrator determined that complainant established

a prima facie case of race discrimination, because she showed that

she was qualified for the position, but not selected in favor of an

individual outside of her protected class. However, the Arbitrator then

found that the agency proffered legitimate non-discriminatory reasons

for its selection; namely, that the selectee had superior education and

field experience for the position at issue. Next, while the Arbitrator

considered complainant's argument disputing these reasons, as well as

her arguments that she was far better qualified than the selectee,

as evidenced, in part by receiving the highest ranking score in the

selection process, the Arbitrator found that complainant failed to

present sufficient evidence to show that the agency's reason's were

untrue or a pretext for discrimination. Therefore, the Arbitrator found

no discrimination regarding claim 4.

Claims 1 - 3

As noted above, while under 29 C.F.R. � 1614.401(d), the Commission

has the authority to review the Arbitrator's decision as it pertains to

the adjudication of complainant's discrimination claims, we note that

the Arbitrator specifically declined to consider claims 1, 2, or 3,

finding that they concerned a position classification dispute which was

not an arbitrable subject. Notwithstanding the fact that the Arbitrator

offered some analysis and opinion regarding the evidentiary submission

on these �rejected' claims, he specifically found these claims to

be non-arbitrable. The Commission has held that it is beyond our

jurisdiction to review the arbitrator's decision regarding the general

arbitrability of an issue. See Solberg v. Department of Justice, EEOC

Appeal No. 02920004 (October 15, 1993). Although on appeal complainant

presents additional comparative evidence in support of claims 1, 2,

and 3, we find that consideration of this evidence is not within the

Commission's purview in this case for the same reason.

For the reason stated herein, complainant's appeal of claims 1 - 3

is DISMISSED.

Claim 4

Regarding claim 4, we note that on appeal grievant submits a copy of her

resume and a copy of the position description for the GS-14 Public Health

Analyst position at issue. The record, however, is otherwise devoid

of any evidence regarding this claim. We find that the record lacks

sufficient information to permit us to determine whether complainant's

non-selection was the result of unlawful discrimination.

Accordingly, in order to render a determination on claim 4, we REMAND

this matter to the agency to provide the necessary evidentiary materials

regarding the selection for the position at issue, and to conduct

a supplemental investigation to complete the evidentiary record on

this matter. In particular, we note that both parties dispute the

statistical evidence and methodology presented by each, to include

omission of pertinent data, suggesting that a supplemental investigation

is indicated. Upon completion of compilation of the record and/or

supplemental investigation, the Order below also instructs the agency

to provide grievant the opportunity to again appeal the Arbitrator's

decision to the Commission.

ORDER

The agency is ORDERED to take the following action:

1. The agency shall compile an evidentiary record regarding grievant's

non-selection claim, to include the following:

A. A copy of the transcript from the hearing before the Arbitrator;

B. Information documenting the selection process, to include:

1. the race of all the candidates for the position at issue;

2. all documents, including applications, relied upon by the rating

and selecting officials in assessing the

relative qualifications of the candidates;

3. a copy of the vacancy notice; and

4. any other relevant documentation relating to the selection process.

2. The agency shall conduct a supplemental investigation to clarify

the statistical evidence referenced in the Arbitrator's decision, as

well as the appeal statements of both parties. The agency shall also

obtain an affidavit from the agency official responsible for ranking the

candidates' applications, to address why complainant received a higher

score than the selectee. The agency shall also obtain a affidavit from

the selecting official explaining why the selectee's education and field

experience were determinative factors in her selection.

3. The agency shall complete the actions described above within sixty

(60) calendar days of the date this decision becomes final. The agency

shall provide a copy of all documents generated by the above-mentioned

supplemental investigation to grievant and her attorney, and provide

grievant with the right to appeal the Arbitrator's decision to the

Commission, pursuant to 29 C.F.R. � 1614.403, within thirty (30) days

of grievant's receipt.

The agency shall provide documentary confirmation of the completion of

these actions 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 grievant 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

May 15, 2003

__________________

Date

1On appeal, the agency argues that grievant failed to timely file the

instant appeal, and requests that it be dismissed for this reason.

In order to be timely, an appeal concerning a grievance which raises an

employment discrimination claim, must be filed at the Commission within

30 days of receipt of the final decision by an agency, arbitrator, or the

Federal Labor Relations Authority. See EEOC Management Directive-110,

Chapter 10-2, November 9, 1999. However, as noted by grievant, we find

that the agency did not provide grievant with appeal rights to the

Commission regarding the Arbitrator's decision. Therefore, we waive the

untimeliness in this instance because of the agency's failure to provide

grievant with appeal rights to the Commission regarding the Arbitrator's

decision. See 29 C.F.R. � 1614.604(c).

2The claims are not identified by number in the Arbitrator's decision,

or by the responses of the parties on appeal. They are set forth and

enumerated herein for ease of reference.