01A14082_r
11-19-2002
Gail L. Smith, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Gail L. Smith v. Department of Transportation
01A14082
November 19, 2002
.
Gail L. Smith,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A14082
Agency No. DOT-6-01-6020
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning 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.
In a formal complaint filed on December 1, 2000, complainant alleged
that she was discriminated against on the bases of sex and in reprisal
for prior protected activity when:
(1)(a) during the summer of 1999, complainant was, without notice,
changed to three months of straight mid shift in order to change a named
agency employee to straight days;
(b) on May 3, 2000, complainant's supervisor told her that she had to
exhaust her compensatory time before she used annual leave and did not
allow her to use one hour of annual leave, even though she had �use or
lose� leave;
(c) on June 1, 2000, complainant's supervisor directed her not to speak
to another union member; not to contact the head of security; and to
follow her chain of command for anything including FAA orders;
(d) on July 27, 2000, complainant's supervisor changed complainant's
shift and told her that it was her responsibility to check the shift
schedule daily for any changes he may have made;
(e) on July 29, 2000, complainant learned that her supervisor granted
Unix Training classes to another technician after having not responded
to her request to attend;
(f) on August 8, 2000, complainant received a Letter of Reprimand from
her supervisor for calling the FAA Regional Office and requesting public
information; and
(g) on August 16, 2000, complainant received a suspension from her
supervisor.
On April 28, 2001, the agency issued a decision dismissing claims (1)(c),
(f), and (g) pursuant to the regulation set forth at 29 C.F.R. �
1614.107(a)(4), on the grounds that complainant had previously elected
to pursue the matter through the negotiated grievance procedure that
allows for the processing of discrimination claims. Specifically,
the agency found that because complainant had filed a grievance with
a union representative on September 11, 2000, she was precluded from
attempting to resolve the matter through the EEO process.
The agency dismissed claims (1)(a), (b), (d) and (e) pursuant to 29
C.F.R. � 1614.107(a)(2), on the grounds of untimely EEO Counselor contact.
The agency determined that complainant did not initiate contact with
an EEO Counselor until October 13, 2000, after the expiration of the
forty-five (45) day limitation period for contacting an EEO Counselor
with regard to the matters identified in claims (1)(a), (b), (d) and (e).
The agency further determined that complainant should have reasonably
suspected discrimination more than 45 days before she contacted an EEO
Counselor. The agency noted that an EEO Counselor's poster was posted
in complainant's facility during the periods of alleged discrimination.
Although complainant did not raise continuing violation, the agency
addressed it and found no viable claims within 45 days from the date
she filed an informal complaint.
On appeal, complainant argues that claims (1)(a), (b), (d) and (e)
are timely because she was in contact with an official of the Office of
Civil Rights beginning May 5, 2000. Complainant claims that she spoke
with the Civil Rights Official on several occasions at which time he
instructed her to collect dates, times, and to decide what course of
action she would request from his office.
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.
Regarding claims (1)(c), (f), and (g), the Commission finds that
the agency properly dismissed these claims pursuant to 29 C.F.R. �
1614.107(a)(4). The record indicates that complainant is covered by a
collective bargaining agreement that permits claims of discrimination
to be raised in the negotiated grievance procedure. Complainant filed
a grievance on September 11, 2000, concerning the matters identified in
the subject claims, and filed the instant EEO complaint on December 1,
2000, regarding the same issues.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action.
Regarding claims (1)(a), (b), (d) and (e), the Commission finds that
complainant first sought counseling with respect to these claims on
October 13, 2000, which is beyond the 45-day time limit. Complainant has
not submitted any persuasive evidence showing that she contacted an EEO
Counselor on an earlier date regarding the incidents.
Accordingly, the Commission finds that the final agency decision
dismissing complainant's complaint was proper and AFFIRMS the decision.
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
November 19, 2002
__________________
Date