01981698
06-07-1999
Alice E. Slater, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
Alice E. Slater v. Social Security Administration
01981698
June 7, 1999
Alice E. Slater, )
Appellant, )
)
v. ) Appeal No. 01981698
) Agency No. 98-0068-SSA
Kenneth S. Apfel, )
Commissioner, )
Social Security )
Administration, )
Agency. )
______________________________)
DECISION
On December 24, 1997, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) dated December 1, 1997, pertaining
to her complaint of unlawful employment discrimination in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e
et seq., and Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. �791 et seq. In her complaint, appellant alleged that she was
subjected to discrimination on the bases of race (White), color (White),
physical disability (multiple sclerosis), and in reprisal for prior EEO
activity when:
On December 12, 1996, management failed to reasonably accommodate
appellant's physical disability when they modified her existing
accommodation agreement;
Appellant was charged with 15� hours of absence without official leave
(AWOL) from December 1996 through January 1997;
On January 31, 1997, management issued appellant a written reprimand;
Management subjected appellant to continual harassment when she was
placed on sick leave restriction by a memorandum dated February 3,
1997; and
On May 2, 1997, management issued appellant a "Proposal to Suspend"
for seven (7) days, citing 34 hours of AWOL and her failure to follow
supervisory instructions.
The agency accepted allegations (1) through (4) for investigation
and dismissed allegation (5) pursuant to EEOC Regulation 29
C.F.R. �1614.107(d), for raising the same matter that was raised in a
negotiated grievance procedure that permits allegations of discrimination.
Specifically, the agency determined that appellant was issued a step 3
grievance decision on that matter on October 23, 1997, and that Article
24, Section 8 of its Negotiated Settlement Agreement (NSA), permitted
allegations of discrimination to be raised.<1>
On appeal, appellant acknowledges that she filed a grievance on the
matter identified in allegation (5), but asserts that she withdrew the
grievance after her receipt of an unfavorable step 3 decision.
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 allegations 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.
In the instant case, the record discloses that appellant raised the
matter identified in allegation (5) in the agency's negotiated grievance
procedure, and it is undisputed that the agency's NSA permits allegations
of discrimination. Regardless of whether appellant withdrew her grievance
after her receipt of the unfavorable step 3 decision, she already elected
to proceed with that allegation through the negotiated grievance forum.
It is inappropriate to now raise the same allegation in the EEO complaint
process.
Accordingly, the agency's decision to dismiss allegation (5) is AFFIRMED
for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
June 7, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
1The Commission notes that the agency failed to provide a copy of the NSA
in the record. Although in this case appellant does not dispute that the
NSA permits allegations of discrimination, the agency is advised to provide
all information in the record that is necessary to support dismissal
pursuant to 29 C.F.R. �1614.107.