01a05382
02-06-2001
Dawn Bartlett, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Dawn Bartlett v. Department of Veterans Affairs
01A05382
February 6, 2001
.
Dawn Bartlett,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A05382
Agency No. 200P2368
DECISION
Dawn Bartlett (complainant) filed a timely appeal with this Commission
from a final agency decision (FAD) dated July 14, 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.<1> In her complaint, complainant alleged
that she was subjected to discrimination on the basis of sex (female)
when she discovered on March 27, 1999 that she was not selected for a
position as a Medical Technologist.
The agency dismissed the complaint pursuant to EEOC Regulation 29 C.F.R. �
1614.107(a)(4), noting that complainant raised the same matter in a
negotiated grievance procedure that permits allegations of discrimination.
The agency noted that complainant filed a grievance on April 28, 2000,
almost two months before she filed an EEO complaint.
On appeal, complainant contends that because the agency ruled, at
the third step of the grievance process, that the issues surrounding
complainant's non-selection were non-grievable, her election is void.
She also contends that the filling of an unfair labor practice on the
matter of her non-selection was filed by the union to protect the union's
interests and does not interfere with her EEO complaint. In response,
the agency notes that complainant appealed the agency's decision that
her non-selection is non-grievable and argues that her election of the
grievance process is void only if she withdraws this appeal. The agency
also disputes complainant's argument that the unfair labor practice was
filed by the Union to protect its interests and therefore does not impact
her EEO complaint.
EEOC Regulation 29 C.F.R. � 1614.107(a)(4) provides that the agency
should dismiss a complaint where the complainant has raised the
matter in a negotiated grievance procedure that permits allegations
of discrimination. The Commission has previously held that where a
complainant filed a grievance prior to filing an EEO complaint, but
the grievance was denied on the grounds that the subject matter of the
grievance was not a grievable matter, the complainant did not make a
true election. See Chai v. National Aeronautics and Space Administration,
EEOC Request No. 05970016 (July 10, 1998); Holmes v. Department of Navy,
EEOC Request No. 05931010 (October 14, 1994). However, the regulations
further provide that a grievant may not appeal to the Commission when
the matter initially raised in the negotiated grievance procedure is
still ongoing in that process, is in arbitration, is before the FLRA,
is appealable to the MSPB or if 5 U.S.C. 7121(d) is inapplicable to the
involved agency. See 29 C.F.R. � 1614.401(d). In the case at hand,
it is undisputed that upon receiving the agency's decision that the
matter at issue is non-grievable, the Union filed a notice of intent to
invoke arbitration and that complainant has not dismissed her appeal of
the grievability issue. Accordingly, the agency's decision to dismiss
complainant's EEO complaint was proper and it is hereby 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
February 6, 2001
Date
1On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.