01980342
06-21-2000
Jacqueline Hicks, Complainant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.
Jacqueline Hicks v. Department of the Air Force
01980342
June 21, 2000
Jacqueline Hicks, )
Complainant, )
)
v. ) Appeal No. 01980342
) Agency No. AL900980054
F. Whitten Peters, )
Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
Complainant timely 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
received by complainant on September 20, 1997. The appeal was postmarked
October 9, 1997.
Complainant contacted an EEO Counselor on July 25, 1997, regarding
claims of discrimination. Specifically, complainant alleged that she was
discriminated against when on June 26, 1997 she received a performance
appraisal of fully successful. Informal efforts to resolve complainant's
concerns were unsuccessful.
On August 25, 1997, complainant filed a formal complaint alleging that
she was the victim of unlawful employment discrimination on the bases
of race, color, national origin, sex and reprisal.
On September 15, 1997, the agency issued a final decision (FAD) dismissing
complainant's complaint on the grounds that complainant elected to pursue
her claims through the Negotiated Grievance Procedure. Specifically, the
agency determined that on July 9, 1997, prior to seeking EEO counseling
on July 25, 1997, complainant gave her consent to the Union President
to file on her behalf, as well as other similarly situated employees,
a joint grievance concerning her performance appraisal rating. The FAD
further determined that although the joint grievance was later withdrawn,
complainant's election to proceed through the grievance process had been
made on July 9, 1997.
On appeal, complainant's representative refers to the Collective
Bargaining Agreement between the Union and the agency which establishes
two methods for filing a grievance. Complainant indicates that in the
first instance, an employee may file an individual grievance by first
discussing the matter with her supervisor 21 calendar days of the date
of the action giving rise to the grievance. Complainant states that in
the second instance, the Union president may file a written grievance
with the Labor Relations Officer within 21 calendar days of the date of
the action giving rise to the grievance. Complainant contends that in
this instance, the Union filed, on her behalf, a grievance regarding
her performance appraisal, which does not preclude her from filing an
EEO complaint on the matter.
Volume 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. � �1614. 301(a)) sets forth
the circumstances by which an employee must make an election between
the EEO process and the grievance procedure, as follows:
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 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.
An election to proceed under this part is indicated only by the filing
of a written complaint; use of the pre-complaint process as described
in �1614.105 does not constitute an election for the purposes of this
section. An aggrieved employee who files a complaint under this part
may not thereafter file a grievance on the same matter. An election
to proceed under a negotiated grievance procedure is indicated by
the filing of a timely written grievance. 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.
The record in this case indicates that the grievance was eventually
withdrawn prior to the time complainant sought EEO counseling. However,
the Commission has held that the withdrawal of a grievance does not
abrogate its effects for the purposes of an election. See Bracket
v. Department of the Air Force, EEOC Request No. 05910383 (August 8,
1991). The agency contends that complainant initially filed a grievance
on the issue of her performance appraisal rating which constituted an
election to proceed in that forum. The agency further maintains that
the subsequent decision to withdraw the grievance did not rescind the
election she initially made to pursue that avenue of redress.
Here, complainant asserts that she never made an election to pursue
the negotiated grievance process. Complainant argues that Section
7 of the Collective Bargaining Agreement establishes two methods for
filing a grievance, one of which allows the Union, on its own, to file a
grievance on behalf of an employee. Complainant contends that in light
of the Collective Bargaining Agreement, and because the Union filed the
grievance which was subsequently withdrawn, she is not precluded from
pursing her claims through the EEO process.
Upon review of the record herein, we note that the agency has not provided
a copy of the relevant portion of the Collective Bargaining Agreement that
permits employees to pursue the grievance process or the EEO complaint
process, but not both. Clearly, it is the burden of the agency to
have evidence or proof in support of its final decision. See Marshall
v. Department of the Navy, EEOC Request No. 05910685 (September 6, 1991).
Moreover, assuming arguendo that the Collective Bargaining Agreement
provides that the Union on its own, may file a grievance on an employee's
behalf and that such action was taken on complainant's behalf in the
instant case, the Commission has previously held that an agency cannot
deny a complainant her statutory and regulatory right to file an EEO
complaint, merely because the union exercised its right to file its own
grievance pursuant to the terms of a Collective Bargaining Agreement.
See Rescio v. Department of Transportation, EEOC Appeal No. 01975288
(September 5, 1998). Accordingly, the agency's decision to dismiss the
instant complaint was improper and is REVERSED. Complainant's complaint
is REMANDED to the agency for further processing in accordance with the
ORDER below.
ORDER (E0400)
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 a
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. 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 (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. 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:
June 21, 2000
________ ____________________________
DATE Carlton M. Hadden, 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 ASSISTANT
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 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.