01977068
11-05-1998
Amparo S. Oviedo, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Amparo S. Oviedo v. Department of the Treasury
01977068
November 5, 1998
Amparo S. Oviedo, )
Appellant, )
) Appeal No. 01977068
v. ) Agency No. 97-4262
)
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
Agency. )
______________________________)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning 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. The final agency decision (FAD) was issued on
August 21, 1997 and received by Appellant on August 25, 1997. The appeal
was postmarked September 22, 1997. Accordingly, the appeal is timely,
(See 29 C.F.R. � 1614.402(a)), and is accepted in accordance with EEOC
Order 960, as amended.
ISSUE PRESENTED
The issues on appeal are as follows:
Whether or not the agency properly dismissed Appellant's claims on the
basis that Appellant previously filed a grievance on this matter; and
Whether or not the agency properly partially dismissed Appellants claims
on the basis that they fail to state a claim.
BACKGROUND
A review of the record reflects that on June 5, 1997, Appellant sought
EEO pre-complaint counseling and, on July 16, 1997, she filed her
formal complaint, alleging that she had been the victim of unlawful race
discrimination in violation of Title VII when: (1) the agency decided,
on April 23, 1997, to suspend Appellant from duty without pay for seven
calendar days; and (2) on May 13, 1997, the agency set the dates of
Appellant's suspension during the week that Appellant was scheduled for
jury duty, depriving Appellant the opportunity to take a vacation.
The agency dismissed allegation number 1 and 2 because Appellant raised
the matter of her suspension in a negotiated grievance procedure that
permits allegations of discrimination. In addition, the agency dismissed
allegation number 2 for failure to state a claim. For the reasons set
forth below, we AFFIRM in part and REVERSE, in part.
ANALYSIS AND FINDINGS
The record indicates that on March 27, 1997, Appellant through her union
representative, John Pepping, Chief Stewart, NTEU Chapter 108, filed a
written request for 3rd Step Grievance Hearing regarding the decision to
suspend Appellant for seven calendar days. On April 8, 1997, the 3rd Step
Grievance Hearing took place and resulted in a decision, on April 23,
1997, which sustained the seven-day suspension decision. On May 21,
1997, Appellant was advised that the temporary stay of her suspension
had expired and that her seven-day suspension was scheduled to commence
on June 2, 1997. On July 16, 1997, Appellant filed her EEO complaint.
Allegation One -- Suspension from Duty Without Pay for Seven Calendar
Days
Election of Negotiated Grievance Process
The Agency dismissed Appellant's first allegation since Appellant filed a
grievance prior to her EEO complaint. According to 29 C.F.R. �1614.301,
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,
an employee wishing to file a complaint or a grievance on a matter of
alleged employment discrimination must elect to raise the matter under
either 29 C.F.R. �1614 et. seq. or the negotiated grievance procedure,
but not both.
Appellant is employed by an agency subject to 5 U.S.C. �7121(d). In
addition, the record reflects that discrimination claims are permitted
pursuant to article 41 of the agency's agreement with the union. Moreover,
the record shows that Appellant filed a written grievance prior to filing
her formal EEO Complaint and accordingly elected her choice of pursuing
the negotiated grievance procedure. While Appellant argues that she
did not file "this complaint" in the negotiated grievance process, the
negotiated grievance process was initiated in relation to her proposed
seven-day suspension which she now claims was racially motivated and in
violation of Title VII.
The failure to raise an allegation of discrimination when permitted by the
negotiated grievance procedure is an election of forum and precludes the
employee from filing an EEO complaint over the same matter. Accordingly,
since the personnel action raised in the grievance (seven-day suspension)
is the same personnel action raised in Appellant's first allegation of
her EEO Complaint, the Appellant was required to raise her claims of
discrimination during the grievance process. See Jennings v. DOT EEOC
Request No. 05960607 (January 24, 1997). Therefore, we AFFIRM the FAD
with respect to Appellant's first claim.
Allegation Two -- Agency's Decision to Schedule Suspension During the
Week of Jury Duty
Negotiated Grievance Process Previously Initiated
The agency dismissed Appellant's second allegation on the basis that it
was also raised in the negotiated grievance process. We disagree with the
agency's analysis. The election of the negotiated grievance procedure
to challenge an action does not prevent a later EEO complaint over a
similar action when a separate intervening event occurs such that the
actions are no longer considered identical. See Daniels v. EEOC, Request
No. 05890605 (August 17,1989); See also, Anvari v. Secretary of Health
and Human Services, Appeal No.01970569 (August 28, 1997)(allegations
that discrimination continued after the grievance process states a new
claim).
Appellant disputed the basis of the proposed suspension in the negotiated
grievance process. However, Appellant's second allegation in her EEO
complaint does not dispute the legitimacy of the suspension but rather the
method of its implementation which was not at issue until the grievance
process concluded and the agency's decision to suspend Appellant was
affirmed. Accordingly, Appellant's second allegation regarding the
manner in which her suspension was implemented states a new claim.
Failure to State a Claim
The agency also dismissed Appellant's second allegation on the basis
that it fails to state a claim.
In accordance with 29 C.F.R. �1614.107(a), the agency shall dismiss
a complaint or a portion of a complaint that fails to state a claim.
The regulations at 29 C.F.R. �1614.103 provide that an agency shall accept
a complaint from any aggrieved employee or applicant for employment who
believes that he or she has been discriminated against by the agency
due to race, color, religion, sex, national origin, age, sex-based wage
discrimination, disabling condition or retaliation. In addition, the
Supreme Court has stated that an employee is aggrieved when some personal
loss or harm has been suffered with respect to a term, condition, or
privilege of employment. See Trafficante v. Metropolitan Life Insurance
Co., 409 U.S. 205 (1972); see also 42 U.S.C. �2000e-2(a)(1).
The only proper questions in determining whether an allegation is
within the purview of the EEO process are: (1) whether the complainant
is an aggrieved employee and (2) whether she has alleged employment
discrimination covered by the EEO statutes. An employee is "aggrieved"
if she has suffered direct and personal deprivation at the hands of the
employer. See Hobson v. Department of the Navy, EEOC Request No. 05891133
(March 2, 1990). We find that a fair reading of the EEO counseling
report and formal complaint present the allegation that Appellant's
suspension had been implemented in a manner intended to deprived her of
the opportunity to take a vacation since the agency scheduled Appellant's
suspension during a week it knew Appellant was scheduled for jury duty.
Accordingly, Appellant's allegation is sufficient to render her an
aggrieved employee. Because Appellant has alleged that the adverse action
was based on race, she has raised an allegation within the purview of
the EEOC regulations.<1>
Accordingly, the agency's decision to dismiss Appellant's second
allegation for failure to state a claim is REVERSED. Appellant's second
allegation in her complaint is REMANDED to the agency for further
processing in accordance with this decision and applicable regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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� (Supp. V 1993).
If the appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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 (T0993)
This decision affirms the agency's final decision 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 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.
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 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 (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:
Nov 5, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 It should be noted that in her statement on appeal, Appellant cites
Section 230 of the Labor Code as a basis for her claim of discrimination
which states in part "No Employer shall discharge or in any manner
discriminate against an employee for taking time off to serve as
required by law on any inquest jury or trial jury, if such employee,
prior to taking such time off, gives reasonable notice to the employer
that he is required to serve . . . " We do not find this law applicable
to the facts herein since Appellant is not alleging that the agency is
discriminating against Appellant because she has taken off for jury
duty, but rather because of her race. Moreover, assuming arguendo,
Appellant is claiming a violation of Section 230 of the Labor Code,
such claim would not fall within the purview of the Commission.