01A02604
03-30-2001
Barbara C. Labrew, Complainant, v. Elaine Chao, Secretary, Department of Labor, Agency.
Barbara C. Labrew v. Department of Labor
01A02604
March 30, 2001
.
Barbara C. Labrew,
Complainant,
v.
Elaine Chao,
Secretary,
Department of Labor,
Agency.
Appeal No. 01A02604
Agency No. 911090
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated January 21, 2000, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. ; Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The record reveals that complainant, on February 3, 1999, initiated
contact with an EEO counselor. On March 18, 1999, complainant filed
a formal EEO complaint claiming that she was the victim of unlawful
employment discrimination on the bases of her age (D.O.B. July 19, 1940),
disability (physical) and in reprisal for prior EEO activity when:
From September 1986 through the present, the agency failed to implement
an Arbitrator's award issued in 1985;
From 1993 through 1994, OWCP failed to assist complainant in obtaining
appropriate work for her and she was not selected for four positions;
Non-selection for Staff Assistant position GS-0303-5;
Non-selection for Handicapped Employment Clerk GS-303-5 under
Announcement No. PCEPD 98-37;
Non-selection for Handicapped Employment Clerk position, GS-303-6/7,
under Announcement No. PCEPD 98-37A;
Non-selection for a Secretary position, GS-318-05, under Announcement
No. ESA-98-06;
Non-selection for a Program Analyst position, GS-303-06, under
Announcement No. ESA-98-03;
Non-selection for a Secretary position, GS-318-06/06, under Announcement
No. PWBA-98-010;
Non-selection for Announcement No. ETA 97-022; and
The EEO Counselor attempted to restrain complainant from filing the
instant complaint.
By letter dated August 20, 1999, complainant, through her representative,
withdrew claim 2. In addition, with respect to claims 3 through 8,
the letter indicated that complainant was aware of her non-selections by
July 1998. Furthermore, complainant provided that she did not contact
an EEO Counselor within 45-days of the above events because she was
ill and incarcerated. Also, complainant, through her representative,
submitted another letter dated December 15, 1999, withdrawing claim 9.
On January 21, 2000, the agency issued a decision dismissing the present
complaint for failure to cooperate and for untimely EEO Counselor contact.
As an initial matter, the Commission in this decision will only address
claims 1, 3 through 8 and 10, because complainant, by letters dated
August 20, 1999 and December 15, 1999, withdrew claims 2 and 9.
Regarding claim 1, the Commission has held that an employee cannot
use the EEO complaint process to lodge a collateral attack on another
proceeding. See Wills v. Department of Defense, EEOC Request No. 05970596
(July 30, 1998); Kleinman v. United States Postal Service, EEOC Request
No. 05940585 (Sept. 22, 1994); Lingad v. United States Postal Service,
EEOC Request No. 05930106 (June 24, 1993). In the case at hand, the proper
forum for complainant to have raised her allegation of dissatisfaction
with the implementation of the arbitration decision was within the
negotiated grievance process itself and/or with the Arbitrator. Because
the claim is a dispute with the implementation of the determination
rendered in another administrative dispute resolution process, the claim
fails to state a claim. See Suchil v. United States Postal Service, EEOC
Appeal No. 01982943 (Mar. 10, 1999) (allegation that the agency failed
to provide back pay as ordered by an arbitrator's award fails to state
a claim). It is inappropriate for complainant to attempt now to use the
EEO process to enforce an action taken or ordered through another forum.
Accordingly, claim 1 is properly dismissed.
With regard to claims 3 through 8, EEOC Regulation 29 C.F.R. �
1614.105(a)(1) requires that complaints of discrimination should be
brought to the attention of the Equal Employment Opportunity Counselor
within forty-five (45) days of the date of the matter alleged to be
discriminatory or, in the case of a personnel action, within forty-five
(45) days of the effective date of the action. However, EEOC Regulation
29 C.F.R. � 1614.105(a)(2) provides that the agency or the Commission
shall extend the time limits when the individual shows that she was
not notified of the time limits and was not otherwise aware of them,
that she did not know and reasonably should not have known that the
discriminatory matter or personnel action occurred, that despite due
diligence she was prevented by circumstances beyond her control from
contacting the Counselor within the time limits, or for other reasons
considered sufficient by the agency or the Commission.
In the case before us, the record is clear with regard to claims 3 through
8, that complainant had knowledge of her non-selections by July 1998.
Therefore, complainant's initial EEO Counselor contact on February 3,
1999, was beyond the 45-day limitation period. Furthermore, complainant
has failed to present adequate justification pursuant to 29 C.F.R. �
1614.105(a)(2) for extending the limitations period. Specifically,
complainant has failed to demonstrate that her illness or incarceration
prevented her from initiating contact with an EEO Counselor by telephone,
regular mail or email. Accordingly, the agency's decision dismissing
claims 3 through 8 for untimely EEO Counselor contact was proper.
Claim 10, pursuant to 29 C.F.R. � 1614.107(a)(8), is hereby dismissed
for alleging dissatisfaction with the EEO process.
For the reasons set forth above, the Commission AFFIRMS the decision of
the agency dismissing the present complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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), 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 (S0900)
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 (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
March 30, 2001
__________________
Date