0120122032
09-24-2012
Crystal Cook, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Crystal Cook,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120122032
Agency No. 200H03102012100645
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 16, 2012, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Veterans Service Representative at the Agency's facility in Philadelphia, Pennsylvania.
On February 23, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American) and sex (female) when:
A. her August 16, 2011 request for reassignment was denied on September 1, 2011; and
B. on August 18, 2011 she was placed on a Performance Improvement Plan (PIP).
In its March 16, 2012 final decision, the Agency dismissed claim A on the grounds that Complainant raised the same matter in a negotiated grievance process. The Agency determined that Complainant, through the union, filed a grievance concerning the same issue on September 30, 2011, before her formal EEO complaint was filed on February 23, 2012. With respect to claim B, the Agency determined that Complainant's placement on a PIP was only a preliminary step to taking a personnel action and does not, by itself, constitute an adverse action to render an employee aggrieved.
The instant appeal from Complainant followed.
ANALYSIS AND FINDINGS
An Agency subject to 5 U.S.C. � 7121(d) may dismiss an EEO complaint where the matter was first raised in a negotiated grievance procedure that permits claims of discrimination to be raised. See 29 C.F.R. � 1614.107(a)(4). The collective bargaining agreement must allow employees to raise matters of alleged discrimination under the 29 C.F.R. Part 1614 EEO process or under the negotiated grievance procedure, but not both. An election to proceed under a negotiated grievance procedure is made by the filing of a written grievance irrespective of whether the Agency had informed the individual of the need to elect or whether the grievance has actually raised an issue of discrimination. See 29 C.F.R. � 1614.301(a). Complainants elect the EEO process by filing a formal EEO complaint prior to filing a timely written grievance. See id.
The record in the instant case contains a Step 1 grievance filed by Complainant dated September 30, 2011, concerning her August 16, 2011 request for reassignment which was denied by the Agency on September 1, 2011. The record also contains document entitled Negotiated Grievance Procedure Notice which advised Complainant that as an employee of the Agency subject to the provisions of 5 USC Section 7121, she is covered by a collective bargaining agreement which permits allegations of discrimination. The Notice further advises that Complainant may seek resolution of her concerns by filing either a grievance under the negotiated grievance procedures or by filing a formal discrimination complaint through the EEO but not both:
Because Complainant filed her grievance through the union before she filed the instant formal complaint, we find that she elected to pursue her claim through the grievance process. We find that the Agency properly dismissed claim A on the grounds that Complainant raised the matter in a negotiated grievance procedure that permits allegations of discrimination pursuant to 29 C.F.R. � 1614.107(a)(4).
With respect to claims B, the Agency determined that Complainant's placement on a PIP was only a preliminary step to taking a personnel action and did not by itself, constitute an adverse action to render an employee aggrieved. Further, the record does not indicate that any adverse action was taken by the Agency as a result of her placement on the PIP.
The Commission finds that the Agency properly dismissed claims B because Complainant failed to identify a specific action attributable to Agency management and/or a specific harm that she allegedly sustained. EEOC Regulation 29 C.F.R. � 1614.106(c) provides that an EEO complaint must be sufficiently precise to describe the actions or practices that form the basis of the complaint. Complainant has failed to identify a promotional and/or developmental opportunity that she was denied and so has failed to allege facts that could establish that she has suffered a present harm or loss with respect to a term, condition or privilege of her employment for which there is a remedy if discrimination were established. See Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Regarding claim B, the Commission has held that a PIP is merely a preliminary step to taking a personnel action and, in most instances, by itself does not constitute an adverse action sufficient to render an employee aggrieved. See Lopez v. Department of Agriculture, EEOC Appeal No. 01A04897 (November 1, 2000); Jackson v. Central Intelligence Agency, EEOC Request No. 059311779 (June 23, 1994). In the Section by Section Analysis that accompanied the 1992 issuance of EEOC regulations at 29 C.F.R. Part 1614, the Commission explained that:
We intend to require dismissal of complaints that allege discrimination in any preliminary steps that do not, without further action, affect the person; for example, progress reviews or improvement periods that are not a part of any official file on the employee.
See 57 Fed. Reg. 12643 (April 10, 1992).
When determining whether a record is in "any official file on the employee," the concern is "with official records which could be available to personnel other than the personnel responsible for the challenged act." Jackson, supra (citation omitted). There is nothing to show that the PIP in this case is included in Complainant's official personnel record. Accordingly, the Agency's decision to dismiss this claim was proper.
CONCLUSION
For the reasons set forth herein, the Agency's decision dismissing the instant complaint is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
September 24, 2012
__________________
Date
2
0120122032
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122032