0120072467
09-20-2007
Maxine L. Washington, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Maxine L. Washington,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120072467
Agency No. 9V1M07045
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated April 9, 2007 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),
sex (female), age (D.O.B. 07/21/55), and reprisal for prior protected
EEO activity [arising under an EEO statute that was unspecified in the
record] when, on September 20, 2006, she became aware that she was not
selected for a promotion to a WG-8255-10, Pneudraulics System Mechanic
on certificates #06JUN641146 and #06JUN639435. The agency dismissed
the complaint on the basis that complainant had previously raised the
same claim concerning the same two non-selections in a Step I Grievance
filed on August 25, 2006.
Complainant contends on appeal that her grievance concerned "repromotion"
while her EEO complaint related to her "non-selection." Complainant
additionally asserts that to her knowledge, no investigation was
ever conducted concerning her non-selection. In response, the agency
contends that the non-selections identified by complainant clearly were
incorporated in the grievance that she filed on August 25, 2006, which was
decided on September 25, 2006 in a Step I Grievance Decision, and again
on October 19, 2006, in a Step II Grievance Decision. The Commission
finds that the record supports the agency's position in that a review of
the Grievance decisions reveals that complainant grieved the agency's
failure "to date" to promote her back to her original Grade of WG-10.
See Report of Investigation (ROI), at C-15, C-5.
The record shows that under the terms of the agency's union agreement,
employees have the right to raise matters of alleged discrimination
under the statutory procedure or the negotiated grievance procedure,
but not both. Additionally, the regulation set forth at 29 C.F.R.
� 1614.107(a)(4) provides that an agency may dismiss a complaint where
the complainant has raised the matter in a negotiated grievance procedure
that permits claims of discrimination. As the record indicates that
complainant elected to pursue the matter within the grievance procedure,
we find that the agency properly dismissed the claim pursuant to 29
C.F.R. � 1614.107(a)(4).
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
September 20, 2007
__________________
Date
2
0120072467
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036