01992257_r
12-17-1999
Betty J. Crocker, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Betty J. Crocker, )
Complainant, )
)
v. ) Appeal No. 01992257
) Agency No. 98-4463
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
Complainant 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.<1> The final agency decision was issued
on December 22, 1998. The appeal was postmarked January 28, 1999.
Accordingly, the appeal is timely (see 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter cited as 29 C.F.R. �1614.402(a)), and
is accepted in accordance with EEOC Order No. 960, as amended.<2>
ISSUES PRESENTED
1. The first issue on appeal is whether the agency properly dismissed the
first claim of the complaint on the grounds that complainant elected to
pursue the matter raised therein under the agency's negotiated grievance
procedure.
2. The second issue on appeal is whether the agency properly dismissed
the second claim of the complaint on the grounds of failure to state
a claim.
BACKGROUND
Complainant initiated contact with an EEO Counselor on September 30, 1998.
On November 19, 1998, complainant filed a formal EEO complaint wherein
she alleged that she had been subjected to discriminatory harassment
on the bases of her sex (female) and race (African-American) when on
September 24, 1998, she was not provided with the use of a government
vehicle to conduct union business. Complainant also made reference on
her complaint form to race and gender as an issue with the last incident
occurring on September 24, 1998. The agency defined this matter as the
second claim in the complaint.
In its final decision, the agency dismissed the first claim of the
complaint on the grounds that complainant elected to proceed pursuant
to the agency's negotiated grievance procedure. The agency determined
that appellant raised the same matter when she filed a formal grievance
on September 28, 1998. The agency stated that complainant received
the Director's answer to her grievance on October 14, 1998. The agency
noted that complainant did not file her formal complaint until more than a
month later. Further, the agency defined a second claim, namely, whether
complainant was discriminated against with regard to race and gender.
The agency determined that this second claim failed to state a claim as
complainant identified no personal harm or injury to a term or condition
of her employment.
On appeal, complainant contends that her claim of discrimination is not
that the agency failed to provide her with a government vehicle to perform
union business, but rather that she was treated differently, and in a very
negative manner. Complainant states that her grievance concerned not
being provided with the government vehicle. According to complainant,
a male union representative was treated differently than her in that
prior notice was not required and he was not spoken to in the same manner.
ANALYSIS AND FINDINGS
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.
Initially, we note that complainant argues that her complaint
and grievance concern different issues. Complainant states that
her grievance involved not receiving use of the government vehicle.
Complainant maintains that her complaint instead focuses on how she was
treated when she sought to obtain use of the vehicle. According to
complainant, a male union representative was not required to give
prior notice before securing use of a government vehicle and he was
not talked to in the same manner as complainant. We find that both
the complaint and the grievance fundamentally relate to complainant's
attempt to obtain use of the government vehicle. Therefore, we do not
accept complainant's position that different issues have been raised.
However, upon review of the record, we note that the agency failed to
insert a copy of the collective bargaining agreement. In light of the
fact that we are unable to determine whether the negotiated grievance
procedure permits allegations of discrimination, we find that the agency
failed to substantiate the bases for its final decision. See Marshall
v. Department of the Navy, EEOC Request No. 05910685 (September 6, 1991).
Accordingly, the agency's decision to dismiss the first claim of the
complaint was improper and is REVERSED. This claim is hereby remanded
for further processing pursuant to the ORDER below.
We note that the agency framed the complaint as stating a second claim
concerning gender and race. The date of the alleged incident was also
September 24, 1998. Gender and race are bases of discrimination and
not issues by themselves. The only clear claim of discrimination set
forth in the complaint is related to complainant being denied use of
the government vehicle for conducting union business. Our review of the
record indicates that a second claim was not raised in the complaint and,
therefore, the agency's refusal to accept a second claim is AFFIRMED
for the reasons set forth herein.
ORDER (E1199)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to
the complainant that it has received the remanded claims within thirty
(30) calendar days of the date this decision becomes final. The agency
shall issue to complainant a copy of the investigative file and also shall
notify complainant 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 complainant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and an
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 (K1199)
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
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant 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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant 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. �� 1614.407
and 1614.408. 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(c)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (T1199)
This decision affirms the agency's final decision/action 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 WITHIN NINETY (90) CALENDAR
DAYS from the date that you receive this decision 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. 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 (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:
December 17, 1999
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant1 On November 9, 1999, revised
regulations governing the EEOC's federal sector complaint process
went into effect. These regulations apply to all Federal sector
EEO complaints pending at any stage in the administrative process.
Consequently, the Commission will apply the revised regulations found
at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2The record does not establish when complainant received the final
agency decision. Absent evidence to the contrary, we find that the
instant appeal was timely filed.