01A02386
08-16-2000
Julie Ann Peterson, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Julie Ann Peterson v. Department of Transportation
01A02386
August 16, 2000
.
Julie Ann Peterson,
Complainant,
v.
Rodney E. Slater,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A02386
Agency No. DOT-6-00-6015
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated January 28, 2000, dismissing 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 Commission
accepts the appeal in accordance with 64 Fed. Reg. 37,644, 37,659
(1999)(to be codified at 29 C.F.R. �1614.405).
The record reflects that on November 2, 1999, complainant filed a
grievance claiming that she was improperly decertified and was �required
to undergo. . . [a] remedial training/skills check.� Complainant's
requested corrective action consisted, in part, of removal of skills
training.
In her November 10, 1999 EEO complaint, complainant alleged that she
was the victim of unlawful employment discrimination on the basis of
sex when she received harsher punishment than a similarly situated male
employee, after she was decertified and subjected to retraining following
an operational error which occurred on September 20, 1999.
The agency dismissed complainant's claim pursuant to 64 Fed. Reg. 37,644,
37,656 (1999)(to be codified and hereinafter cited as 29 C.F.R. �
1614.107(a)(4)), for raising the matter that was previously raised in
a negotiated grievance procedure that permits claims of discrimination.
On appeal, complainant argues that the matter raised in the grievance
addressed decertification; and that the matter addressed in the instant
complaint addresses the extra training to which she was subjected due
to the decertification.
The regulation set forth at 64 Fed. Reg. 37,644, 37,658 (1999)(to be
codified and hereinafter cited as 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.
Complainant filed a step 1 grievance on November 2, 1999, concerning
the discipline she received as a result of the operational error which
occurred on September 20, 1999. The record shows that complainant is
covered by a collective bargaining agreement which allows issues of
discrimination to be raised pursuant to the negotiated procedure. We are
not persuaded by complainant's assertions on appeal that the subject
of her November 10, 1999 EEO complaint is different in nature and
scope from her November 2, 1999 negotiated grievance. We determine
that complainant's EEO complaint covered the same issue addressed when
complainant chose to pursue her claim through the agency's negotiated
grievance procedure. Accordingly, the agency's decision to dismiss
complainant's complaint was proper and is AFFIRMED for the reasons set
forth herein.
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 (S0400)
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
August 16, 2000
Date
______________
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 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.