0120111379
10-05-2011
Alice Ritchie, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Alice Ritchie,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120111379
Agency No. 200H06322010104096
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated December 15, 2010, dismissing her complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Staff Nurse at the Agency’s Medical Center in Northport, NY.
On November 8, 2010, Complainant filed a formal complaint alleging that
the Agency subjected her to discrimination on the bases of age (72)
and reprisal for prior protected EEO activity under an EEO statute that
was unspecified in the record when:
1. Complainant was denied approval for an Administrative Absence for
attending a Medical Conference on May 19-21, 2010;
2. On June 17, 2010, Complainant was not given credit/award for her
certifications and re-certifications;
3. On June 22, 2010, Complainant was notified that her tour was changed
effective June 24, 2010;
4. On July 23, 2010, the decision issued for Complainant’s grievance
was that she would be issued an admonishment and returned to her tour
promptly;
5. On or about July 23, 2010, the Nurse Professional Standards Board
(NPSB) did not acknowledge her higher education when conducting their
review.
The record in this matter indicates that during Complainant’s
initial contact with the Agency’s EEO Counselor, she raised concerns
regarding only the change to her tour of duty as identified in claim 3.
Complainant was issued a Notice of Right to File a formal complaint
regarding her schedule change. However, in her formal complaint,
Complainant also included reference to the additional claims identified
above. In its final decision, the Agency dismissed claims 3 and 4
pursuant to 29 C.F.R. § 1614.107(a)(4) on the grounds that Complainant
had previously raised the claims in a negotiated grievance procedure that
permits allegations of discrimination. The Agency dismissed claims 1,
2, and 5 on the grounds that Complainant failed to bring the incidents
to the attention of an EEO Counselor and they were not like or related
to matters previously brought to the attention of a Counselor.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.301(a) states that when a person is
employed by an Agency subject to 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 a 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 grievance which alleged discrimination may not thereafter file a
complaint on the same matter under 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.
Upon review of the record, we find that Complainant did in fact file
a grievance regarding the change in her tour of duty as identified
in claim 3 of the instant complaint. The record includes a copy of
the grievance, dated, June 23, 2010, and the applicable article of
the collective bargaining agreement may be raised in the negotiated
grievance procedure. Because Complainant filed her grievance before she
filed the instant complaint, we find that she selected the grievance
process as the vehicle for pursuing the claim regarding the change in
her tour of duty. Therefore, we find that the Agency properly dismissed
claims 3 and 4 on the grounds that Complainant already raised these
matters in a negotiated grievance procedure that permitted allegations
of discrimination.
With regard to claims 1, 2, and 5, the regulation set forth at 29
C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall
dismiss a complaint which raises a matter that has not been brought to the
attention of an EEO Counselor, and is not like or related to a matter on
which the complainant has received counseling. A later claim or complaint
is “like or related” to the original complaint if the later claim
or complaint adds to or clarifies the original complaint and could have
reasonably been expected to grow out of the original complaint during the
investigation. See Scher v. U.S. Postal Serv., EEOC Request No. 05940702
(May 30, 1995); Calhoun v. U.S. Postal Serv, EEOC Request No. 05891068
(Mar. 8, 1990). Under this standard, the Commission finds that claims 1,
2 and 5 are not like or related to the claim concerning the changes made
to her schedule which is the claim she raised before the EEO Counselor.
CONCLUSION
Accordingly, the Agency's dismissal of the instant complaint is AFFIRMED
for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
October 5, 2011
__________________
Date
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0120111379
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120111379