01992649
03-30-2000
Mary M. LaMoy, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Mary M. LaMoy, )
Complainant, )
)
v. ) Appeal No. 01992649<1>
) Agency No. 950526
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
______________________________)
DECISION
On February 11, 1999, complainant filed a timely appeal of a January 6,
1999, dismissing the claims in her complaint for raising the same matters
in a negotiated grievance and in an appeal to Merit Systems Protection
Board (MSPB) and for failure to state a claim.<2>
In its final decision, the agency identified complainant's complaint as
whether complainant, an Airplane Pilot, GS-12, was discriminated against
when she was subjected to a hostile work environment concerning: the
December 1993 removal from flight duty on large aircraft after reporting
unsafe conditions; the derogatory comments made during the March 13, 1995
meeting to resolve her negotiated grievance; the alleged comments about
her being paranoid by the immediate supervisor while she was on leave
which were made known to her on April 24, 1995; and the allegedly unsafe
workplace since the acting first line supervisor carried a concealed
weapon to the office. The agency also indicated that on September 6,
1995, complainant amended her complaint to add that: on July 25, 1995,
she was told that the acting first line supervisor was spreading false
statements about her being pregnant and �trying to get a big settlement
from the government;� and she was subjected to repeated unwelcome
telephone calls at her home by an aviation consultant contracted by the
agency.
The agency stated in its final decision that on February 9, 1995,
complainant previously filed a grievance alleging discrimination and
harassment concerning safety in her workplace since 1991, including the
December 1993 removal of her flight duty, and a proposed reassignment
to a position in Boise, Idaho. The agency stated that on September 20,
1995, complainant was notified that she would be removed from the agency
effective September 22, 1995. The agency indicated that on September
28, 1995, complainant filed an appeal to the MSPB with regard to the
alleged discriminatory removal, which was, subsequently, settled on
January 29, 1996. The MSPB settlement agreement provided, inter alia,
that complainant's removal/termination would be converted to a resignation
effective August 28, 1995. In her MSPB appeal, complainant also alleged
that she was discriminated against based on her sex when she was subjected
to a hostile work environment as the only female Airplane Pilot in her
office; and she was forced to go on sick leave because she suffered from
gastritis as a result of this hostile work environment.
Based on the foregoing, the agency dismissed the claims of harassment
and reprisal that were raised in complainant's grievance, including her
December 1993 removal from flight duty on large aircraft, for raising
the same matters in a negotiated grievance. The agency did not provide a
copy of an appropriate provision of the collective bargaining agreement
between the agency and its employees concerning their right to make
an election to pursue their discriminatory claim through a grievance
procedure or an EEO complaint procedure. The agency also dismissed the
alleged derogatory comments made during the March 13, 1995 grievance
meeting for failure to state a claim since they were made within the
context of a discussion to resolve a dispute between complainant and
the agency. The agency further stated that the entire complaint involved
the alleged hostile work environment, harassment, and leave, which were
raised in complainant's MSPB appeal. The agency indicated that these
claims were so inextricably intertwined with the removal action that
they were germane to the MSPB appeal. The agency determined that since
the MSPB appeal was resolved to the satisfaction of both parties, these
claims were also resolved; thus, the entire complaint was dismissed for
raising the same matters in an appeal to the MSPB.
Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.107(a)(1)) provides that prior to a
request for a hearing in a case, the agency shall dismiss an entire
complaint that fails to state a claim pursuant to 29 C.F.R. � 1614.103.
With regard to the March 13, 1995 comments, we find that they failed to
state a claim within the purview of the regulations. We note that these
comments were made during complainant's grievance meeting, and involved
actions inextricably intertwined with the processing and administration
of the grievance.
Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.107(a)(4)) provides that prior to a
request for a hearing in a case, the agency shall dismiss an entire
complaint where the complainant has raised the matter in a negotiated
grievance procedure that permits allegations of discrimination or in an
appeal to the Merit Systems Protection Board and � 1614.301 or � 1614.302
indicates that the complainant has elected to pursue the non-EEO process.
With regard to complainant's remaining claims concerning a hostile
work environment, harassment, and working conditions, including the
removal of flight duty in December 1993, we find that these actions
were inextricably intertwined with complainant's subsequent MSPB appeal.
The record indicates that in her MSPB appeal, complainant, when raising
the issue of her removal from employment, specifically alleged that
she was discriminated against based on her sex when she was subjected
to a hostile work environment, which forced her to go on sick leave.
The record also indicates that complainant's MSPB appeal was subsequently
resolved and complainant resigned effective August 28, 1995, pursuant to
the terms of the settlement agreement. Upon review, we find that since
complainant had a forum to raise the alleged discriminatory claims,
as described above, in her MSPB appeal, in the interests of judicial
economy, these claims should be dismissed. Accordingly, the agency's
final decision is hereby AFFIRMED.<3>
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
March 30, 2000
DATE
Carlton
M.
Hadden,
Acting
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.
2The agency was unable to supply a copy of a certified mail return receipt
or any other material capable of establishing the date complainant
received the agency's final decision. Accordingly, since the agency
has failed to fulfill its obligation to transmit its final decision by a
method enabling the agency to show the date of receipt, the Commission
presumes that complainant's appeal was filed within thirty (30) days
of receipt of the agency's final decision. See 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.402).
3In view of the affirmance of the dismissal of the December 1993 claim
for raising the matter in an appeal to MSPB, we need not address the
agency's alternative grounds for dismissal, i.e., for raising the matter
in a negotiated grievance.