01A31031_r
08-07-2003
Betty Kendrix, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Betty Kendrix v. Department of the Treasury
01A31031
August 7, 2003
.
Betty Kendrix,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A31031
Agency No. 03-4015
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated October 28, 2002, dismissing her complaint of unlawful
employment discrimination pursuant to 29 C.F.R. � 1614.107(a)(4), for
raising a claim that had been raised in a previously filed grievance.
In a complaint dated October 18, 2002, complainant alleged that she was
subjected to discrimination on the bases of race (African-American),
sex (female), and age (D.O.B. December 8, 1945) when, on June 25, 2002,
a manager from a group other than her own pointed his finger at her and
yelled at her, thereby creating a hostile work environment.
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,
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.
29 C.F.R. � 1614.301(a). An election to proceed under a negotiated
grievance procedure is indicated by the filing of a timely written
grievance. Id. 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 part 1614, irrespective of whether the agency has
informed the individual of the need to elect or of whether the grievance
has raised an issue of discrimination. Id. Any such complaint filed
after a grievance has been filed on the same matter shall be dismissed
without prejudice to the complainant's right to proceed through the
negotiated grievance procedure. Id. See also 29 C.F.R. � 1614.107(a)
(4) (agencies must dismiss a complaint where complainant has raised the
matter in a negotiated grievance procedure that permits allegations of
discrimination and � 1614.301 indicates that the complainant has elected
to pursue the [grievance] process).
Article 41, Section (2), Subsection D of the collective bargaining
agreement in effect at the time states that employees who believe that
they have been illegally discriminated against on the basis of race,
color, religion, sex, national origin, age, or handicapping condition have
the right to raise the matter under the negotiated grievance procedure.
The record discloses that complainant initiated a grievance on July
10, 2002. The grievance stated: �On or about June 25, 2002, [the]
Group Manager was verbally abusive to [complainant].� The Commission
therefore finds June 25, 2002 incident was first raised in the negotiated
grievance process, and consequently, that complainant made the election
to pursue the matter through that process. She cannot, thereafter,
file an EEO complaint on the same matter.
Accordingly, the agency's dismissal of the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
August 7, 2003
__________________
Date