01A23771_r
10-24-2002
Maxine E. Walker, Complainant, v. John Seal, Acting Executive Director, Pension Benefit Guaranty Corporation, Agency.
Maxine E. Walker v. Pension Benefit Guarantee Corporation
01A23771
October 24, 2002
.
Maxine E. Walker,
Complainant,
v.
John Seal,
Acting Executive Director,
Pension Benefit Guaranty Corporation,
Agency.
Appeal No. 01A23771
Agency No. PBGC-0207
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 3, 2002, dismissing her 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.
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. In her complaint, complainant alleged that she
was subjected to discrimination on the bases of race (African-American)
and age (D.O.B.8-2-1945) when her 1991 Annual Performance Evaluation
Rating of "Outstanding" was changed to "Excellent."
The agency dismissed the complaint on the grounds that complainant
elected to file a grievance under the negotiated grievance procedure.
Complainant in her appeal claims that she never filed a written grievance
and the agency wrongly dismissed her complaint. She states that the
collective bargaining agreement (CBA) in Section 11.8 provides that if
an employee believes that she should have been rated at a higher level,
the employee informally meets with her supervisor and if there ids no
resolution, the employee may submit an appeal to the union president
and department director. Unlike the grievance procedure as provided
in Section 55.6 B, this appeal is not directed solely to a management
official for a written decision and involves a cooperative dialogue
between the two of them to come up with a joint resolution. Accordingly,
she claims that her appeal involved no more than an informal dialogue
and there was no election of a grievance process.
An agency shall dismiss a complaint where the complainant has raised
the matter in a negotiated grievance procedure that permits allegations
of discrimination. 29 C.F.R. �1614 (a)(4). An aggrieved employee who
files a grievance with an agency whose collective bargaining agreement
permits allegations of discrimination to be raised in a negotiated
grievance procedure, may not thereafter file a complaint on the
same matter. An election to proceed under the negotiated grievance
procedure is indicated by the filing of a timely written grievance.
Id. at �1614.301(a).
Article 55.6 of the CBA provides that "the parties are strongly in favor
of resolving employee complaints at the lowest organizational level and
with minimal formality. Therefore, employees who feel aggrieved should
first raise the matter with their supervisor providing information as to
what the problem is and what, in their view would solve the problem....
While it is most desirable to have the employee personally discuss
the complaint with the supervisor, the employee may have a union
representative discuss the complaint with or without the employee being
present.... If the matter is not resolved or the supervisor does not
respond in a timely manner, the employee may file a formal grievance."
After a review of the record, the Commission finds that on November 15,
2001, complainant's union representative informally met with complainant's
supervisor regarding her dispute with the change in her performance
rating. As the matter was not resolved, complainant filed a written
grievance on December 7, 2001. On April 4, 2002, complainant filed an
EEO complaint on the same matter. Complainant, by filing a written
grievance prior to the filing of her EEO complaint, made an election
to proceed through the negotiated grievance procedure and once she made
such an election she could no longer file a complaint on the same matter.
29 C.F.R. � 1614.301(a). Accordingly, the agency's decision to dismiss
the complaint 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
October 24, 2002
__________________
Date