0120103394
12-15-2010
Latisha A. Mitchum, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Latisha A. Mitchum,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120103394
Agency No. 9R1M10090
DECISION
Upon review, we find that the Agency's decision dated July 14, 2010,
dismissing Complainant's complaint for raising the same matter in a
negotiated grievance procedure that permits allegations of discrimination
is proper pursuant to 29 C.F.R. �1614.107(a)(4). The Agency's decision
dismissing the complaint is AFFIRMED.
BACKGROUND
In her complaint, dated June 1, 2010, Complainant alleged discrimination
based on race (Black), sex (female), and in reprisal for filing union
grievance on appraisal when on February 23, 2010, she did not receive a
cash award with her rating of 81 on her 2008-2009 appraisal. The record
indicates that on June 25, 2009, Complainant received her appraisal
for the period of April 1, 2008, to February 3, 2009, on June 25, 2009.
Counselor's Report (CR), Attachment 1, pp. 2, 3. The Agency stated that
in August 2009, Complainant filed a grievance concerning this appraisal
which was resolved via grievance settlement agreement on February 8, 2010,
wherein which the Agency agreed to increase her rating by 3 points with
no monetary award. CR, at 4. The record indicates that Complainant,
accordingly, received the appraisal with the 3 point increase rating on
February 24, 2010. CR, Attachment 1, pp. 10, 11.
The record indicates that under Article 6, section 6.03.a. of the Agency's
collective bargaining agreement, an aggrieved person is permitted to
raise allegations of discrimination under a statutory procedure or the
negotiated procedures, but not both. Master Labor Agreement, p. 19.
ANALYSIS AND FINDINGS
After a review of the record, we find that Complainant previously raised
the matter concerning her appraisal at issue via a grievance. Despite
Complainant's claim, the grievance settlement agreement specifically
indicates that "[n]o monetary award is associated with this agreement."
We note that since the alleged award was directly related to Complainant's
appraisal received on February 24, 2010, under the grievance settlement
agreement, Complainant should have raised the subject matter during
the grievance. We further note that despite her contentions on appeal,
Complainant provides no evidence that she was misled by the Agency that
she could not file a grievance on a cash award. Based on the foregoing,
we find that Complainant previously made an election to pursue the
alleged denial of award via grievance.
Accordingly, the Agency's decision dismissing Complainant's complaint
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
12/15/10
__________________
Date
2
0120103394
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013