01a55007
11-07-2005
Maureen C. Driscoll, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Maureen C. Driscoll v. Department of Transportation
01A55007
November 7, 2005
.
Maureen C. Driscoll,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A55007
Agency No. 2005-19644-RITA-01
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 30, 2005, dismissing her formal 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.
On February 23, 2005, complainant contacted an EEO Counselor and claimed
that she was discriminated against based on her sex in that she has
been the victim of ongoing violation of the Equal Pay Act. Informal
efforts to resolve the matter was unsuccessful and on June 1, 2005,
she filed a formal complaint.
In a final decision dated June 30, 2005, the agency determined that the
instant complaint was comprised of the following claim:
Were you subjected to disparate treatment based on your sex, when you
discovered that the language in a PD (position description) had false
and misleading information, which has led to your position continuing
to not be upgraded from a GS-12 to a GS-13, while male employees doing
similar work have had their positions classified as a GS-13?
The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(4),
on the grounds that complainant raised the matter identified in her
formal complaint, in a negotiated grievance procedure that permits claims
of discrimination to be raised.<1> The agency cited the pertinent
provision of the Collective Bargaining Agreement (Article 39, Section
2(a)) and stated that this provision is sufficiently broad so as to
permit discrimination claims to be raised in the grievance process.
The record contains a copy of a grievance filed by complainant on
April 25, 2005 (resubmitted to the agency on May 3, 2005). Therein,
complainant claimed that her position is classified based on false and
misleading information, and that this action has caused her irreparable
harm to her career.
The record contains a copy of a portion of the Collective Bargaining
Agreement between the agency and complainant's union. Article 39
(Grievance Procedures) states, in pertinent part:
Section 2. A grievance is defined as any complaint subject to the
control of the employer:
a. By any employee in the bargaining unit concerning any matter relating
to the employment of the employee.
EEOC Regulation 29 C.F.R. �1614.107 (a)(4) provides that an agency
shall dismiss a complaint where the complainant has raised the matter
in a negotiated grievance procedure that permits allegations of
discrimination .
The Commission first determines that the applicable Collective Bargaining
Agreement, referenced above, permits claims of discrimination to be
raised in the negotiated grievance process. We next determine that
complainant elected to file a grievance, and then filed the instant EEO
complaint addressing the same matter.
On appeal, complainant argues that the instant complaint can be
distinguished from the grievance she filed, because the instant EEO
complaint addresses the agency's purported violation of �the Equal Pay
Act on the basis of gender;� and that, in contrast, the grievance address
falsification of a position description which amounted to abuse of power
and government waste. We reject this argument. A review of complainant's
April 25, 2005 grievance and the instant EEO complaint indicates that the
essence of the claims in both are the same. Once an employee files a
grievance with an agency which accepts grievances alleging discrimination,
the agency may dismiss any subsequently filed EEO complaint on the
same matter, regardless of whether the grievance actually raised claims
of discrimination. See Martin v. Department of Veterans Affairs, EEOC
Request No. 01954664 (June 12, 1996); Chang v. Department of the Navy,
EEOC Request No. 05940593 (November 10, 1994).
Accordingly, the agency's decision to dismiss this claim as being the
subject of a previously filed grievance was proper and is AFFIRMED.
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 (S0900)
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
November 7, 2005
__________________
Date
1In its final decision, the agency
inadvertently identifies this regulation as �29 C.F.R. � 1614.107(a)(1).�