01A12145_r
05-31-2001
Barbara Taylor, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Barbara Taylor v. Department of the Treasury
01A12145
May 31, 2001
.
Barbara Taylor,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A12145
Agency No. 99-2403R
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated January 10, 2001, dismissing her complaint of unlawful
employment discrimination in violation of the Civil Rights Act of 1964
(Title VII), as amended 42 U.S.C. � 2000e et seq. In her complaint,
complainant alleged that she was subjected to discrimination on the
bases of race and in reprisal for prior protected activity when she
was not selected for two positions.
In a prior final decision, the agency dismissed the complaint on the
grounds the matter was raised by complainant in a prior negotiated
grievance claim. On appeal, the Commission reversed the decision and
remanded the complaint to the agency for processing, finding that
the agency failed to provide portions of the collective bargaining
agreement relevant to the negotiated grievance and EEO process. Taylor
v. Department of the Treasury, EEOC Appeal No. 01A00766 (November 29,
2000).
In the final decision that is the subject of the instant appeal, the
agency provided a copy of the collective bargaining agreement, and again
found that complainant elected to pursue the same matter contained in
the instant complaint through the negotiated grievance procedure, and
dismissed the complaint pursuant to 29 C.F.R. �1614.107(a)(4).
On appeal, complainant contends that the grievance only involved a claim
regarding the agency's alleged failure to submit all of her paperwork
to the ranking panel. In contrast, complainant contends that the EEO
complaint concerns a claim that complainant was subjected to a pattern of
discrimination dating from 1993 until the time of the complaint. Further,
complainant contends
that the grievance's focus on the proper ranking panel procedures
is distinct from the EEO complainant's claim of discriminatory
non-selection. Moreover, complainant argues that she
retains the right to file an EEO complaint under the collective bargaining
agreement because she never raised the issue of discrimination within
the grievance process.
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 claims 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.
The Commission finds that the agency properly dismissed the complaint.
The record reflects that complainant's complaint contains a narrative
detailing several discriminatory events allegedly suffered by complainant
during her employment with the agency. However, most of the incidents
described in complainant's complaint are background and historical
information that buttresses the main claim: the non-selection of
complainant by the agency for two vacancies in late 1998. Moreover, we
reject complainant's argument that her grievance concerns a different
matter than her current complaint. The record reflects that a letter
dated February 4, 1999, from complainant's union documents that the
non-selections formed the basis for the grievance. Assuming arguendo
that complainant is correct in characterizing the grievance as focusing
only on the agency's alleged failure to submit important paperwork to
the ranking panel, we nonetheless find that the issue of non-selection
is inextricably intertwined with the grievance to a degree that makes
the two claims essentially the same matter. Consequently, we find that
the EEO complaint and the grievance concern the same matters.
Further, the record documents that the collective bargaining agreement
allows for claims of discrimination to be brought within the grievance
process or EEO process, but not both. We reject complainant's
argument that she may bifurcate her non-discrimination claim from her
discrimination claim on this matter by filing claims in both forums.
Consequently, we find that complainant's complaint should be dismissed
because it raises matters raised in a prior grievance that permits
allegations of discrimination. Accordingly, the agency's dismissal of
complainant's complaint is AFFIRMED.
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
May 31, 2001
__________________
Date