01A22124_r
06-12-2002
Lewanna Wong, Complainant, v. Stephen A. Perry, Administrator, General Services Administration, Agency.
Lewanna Wong v. General Services Administration
01A22124
June 12, 2002
.
Lewanna Wong,
Complainant,
v.
Stephen A. Perry,
Administrator,
General Services Administration,
Agency.
Appeal No. 01A22124
Agency No. GSAEEO20020002
DECISION
Complainant appealed to this Commission from the agency's February 6,
2002 dismissal of her employment discrimination complaint. In her
complaint, complainant alleged harm on the basis of race (Chinese) when
during two meetings, one held on August 7, 2001 and the other during
October 2001, complainant was advised that her work performance was not
at a satisfactory level, and as a result, was given the option to resign
or be terminated during the October 2001 meeting. Complainant alleged
that she was forced to resign.
The agency dismissed the complaint for stating the same claim raised
in the negotiated grievance procedure. The record includes a form
entitled �Notice of Choice of Procedure.� This form, signed and dated
by complainant, informed complainant that she must pursue her claim
either via the negotiated grievance procedure, or the statutory EEO
process. Complainant filed a grievance, but it was denied in Step-1.
Specifically, the fact-finder explained that the negotiated grievance
procedure did not have jurisdiction over the matter, because it involved
a resignation or removal during complainant's probationary employment
period. Complainant's union representative appealed the decision to
Step-2, but the record contains no Step-2 decision.
The agency may dismiss complaints involving the same matters
previously raised in a negotiated grievance procedure. See 29 C.F.R. �
1614.107(a)(4). Such dismissals are appropriate only when the agency
is subject to 5 U.S.C. � 7121(d), the collective bargaining agreement
(CBA) between the agency and union allows claims of discrimination to
be raised, and requires an election of forums. See 29 C.F.R. � 1614.301.
Although the record does not include a copy of the CBA, the agency
properly informed complainant of the need to select a forum in its
�Notice of Choice of Procedures� form, and complainant clearly elected to
pursue her claim through the negotiated grievance procedure. However,
the grievance procedure refused to accept jurisdiction over her claim.
Since complainant has not had a forum for her employment discrimination
issues, the Commission finds that complainant should have an opportunity
to pursue the claim through the EEO process. See Roberson v. General
Services Administration, EEOC Appeal No. 01851643 (January 20,
1987).<1> However, should the negotiated grievance procedure later
accept jurisdiction over complainant's claim, then dismissal pursuant
to 29 C.F.R. � 1614.107(a)(4) may be appropriate.
CONCLUSION
Accordingly, the agency's dismissal is REVERSED, and the claim is REMANDED
for continued processing.
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 (K0501)
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)
(1994 & Supp. IV 1999). 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 (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 (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
June 12, 2002
__________________
Date
1In Roberson, complainant appealed from an arbitrator's refusal to
address the merits of his grievance. The arbitrator explained that,
as in the present case, complainant was terminated while a probationary
employee, and the CBA did not allow grievances on probationary-period
terminations. The Commission also declined to accept jurisdiction,
because the arbitrator made no ruling on employment discrimination issues.
See Roberson v. General Services Administration (GSA), EEOC Appeal
No. 01851643 (January 20, 1987). The Commission suggested, however,
that complainant seek EEO counseling on the matter since complainant
had not been able to utilize his elected grievance forum. See id.
After utilizing the EEO forum, the Commission addressed the merits of
complainant's employment discrimination claim. See Roberson v. GSA,
EEOC Appeal No. 01890780 (June 30, 1989).