01A10892_r
03-28-2001
Josephine A. Thibault, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Josephine A. Thibault v. Department of the Treasury
01A10892
March 28, 2001
.
Josephine A. Thibault,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A10892
Agency No. 00-4224
DECISION
Complainant timely appealed the agency's October 12, 2000 decision to
dismiss 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. and Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. In her
complaint, complainant alleged that she was subjected to discrimination
on the bases of sex (female), disability, and in reprisal for prior EEO
activity when she was not selected for the position of Revenue Officer,
GS-1169-11.
The agency dismissed the complaint for stating the same matter raised in
a prior grievance. On appeal, complainant argues that she did not file
a grievance, but rather took part in an informal meeting that did not
constitute a formal grievance filing. Complainant provided a memorandum
signed by union and management officials, describing this informal
grievance process. The memo states that the process was designed
�to encourage informal resolution of grievances. . . . When [the
union] presents management with the . . . form [used to initiate the
informal process], it constitutes notice that a potential grievance
exists. . . . The signing of the form in no way implies management's
agreement as to grievability, timeliness or other issues.�
The agency may dismiss complaints raised in a negotiated grievance
procedure that permit 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 statutory
(EEO) procedure 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 timely written grievance. 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. EEO counseling,
intended to define the claims and promote informal resolution prior to
the formal complaint, does not constitute election of the EEO process.
In the present complaint, complainant never filed a written grievance
with the agency. Complainant sought an informal meeting with the agency,
and the agency provided a written response. The agency's response does
not refer to the meeting as a grievance filing, and the record contains
no evidence that complainant proceeded to subsequent �steps� in the
grievance process. Further, management and union described such meetings
in a memo as a �potential grievance.� The Commission finds, given the
unique circumstances described above, the informal meeting is not a
grievance election. Therefore, the Commission finds that complainant
did not elect to pursue her complaint under the grievance process.
CONCLUSION
Accordingly, the agency's dismissal is REVERSED, and the complaint is
REMANDED for further investigation.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
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 (K0900)
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 29
C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 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 29 C.F.R. � 1614.409.
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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 28, 2001
__________________
Date