01A25091_r
06-26-2003
Robinette Walters, Complainant, v. Steven Kandarian, Executive Director, Pension Benefit Guaranty Corporation, Agency.
Robinette Walters v. Pension Benefit Guaranty Corporation
01A25091
June 26, 2003
.
Robinette Walters,
Complainant,
v.
Steven Kandarian,
Executive Director,
Pension Benefit Guaranty Corporation,
Agency.
Appeal No. 01A25091
Agency No. 02-03
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision 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; the Age Discrimination in Employment
Act (ADEA) of 1967, 29 U.S.C. � 621 et seq; and Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791. In a complaint dated March 20, 2002, complainant alleged that she
was subjected to discrimination on the bases of race (African-American),
color (black) sex (female), disability (adjustment disorder, depression,
side effects of medication), and reprisal for prior EEO activity in
connection with 18 separate incidents, some of which were ongoing:
Complainant had been subjected to a hostile work environment.
Complainant had been constantly harassed while at work.
Complainant had not been provided with a reasonable accommodation for
her disabilities.
Complainant had not been reassigned to another group or supervisor as
she had requested.
Complainant had not been provided with a workspace equal to that given
to other employees.
Complainant's work assignments had been taken away, leaving her only
time and attendance matters to work on.
Complainant had not been allowed to use annual or sick leave pursuant
to the Family Medical Leave Act (FMLA).
Complainant's work conditions were made intolerable in an attempt to
force her to resign.
Complainant was not allowed to visit a nurse during work hours when her
disabilities and medical problems required such visits.
Complainant was disciplined for requesting FMLA leave.
The agency encouraged other employees to file grievances against her in
order to force her to resign.
Complainant was not given training and professional development
opportunities that she needed for upward mobility.
Complainant was denied off-site training.
Complainant was not allowed to engage in peer-to-peer training with
other employees.
Complainant was not given fair performance appraisals and corresponding
within-grade increases.
Complainant was subjected to various disciplinary actions
The agency violated the terms of a settlement agreement that Complainant
and the agency entered into in October 2000.
Complainant was not approved for the same level of overtime and credit
hours that white employees were.
The agency failed to offer complainant promotion opportunities.
The agency failed to properly process complainant's workers' compensation
claim.
Complainant experienced hostility while working in the Office of the
General Counsel from October 2000 to February 2001.
In a final decision dated July 9, 2002, the agency dismissed the complaint
on the ground that complainant had elected to pursue allegations
(1) - (10) and (12) - (18) through a negotiated grievance proceeding
in accordance with 29 C.F.R. � 1614.301. Alternatively, the agency
dismissed allegations (6) - (9), (11) - (14), and (19), on the ground
that complainant failed to provide specific information in response to an
agency request that she do so. The agency also dismissed allegations (5),
(15) - (17), and (20) - (21), on the ground of untimely contact with
an EEO counselor. In addition, the agency dismissed allegations (4)
and (10) for failure to state a claim Finally, the agency dismissed
all of the allegations to the extent that they asserted matters that
occurred prior to a settlement agreement that the parties entered into
in October 2000, on the ground of mootness.<1>
When a person is employed by an agency subject to 5 U.S.C. � 7121(d) and
is covered by a collective bargaining agreement that permits allegations
of discrimination to be raised in a negotiated grievance procedure,
a person wishing to file a complaint or a grievance on a matter of
alleged employment discrimination must elect to raise the matter under
either part 1614 or the negotiated grievance procedure, but not both.
29 C.F.R. � 1614.301(a). An election to proceed under a negotiated
grievance procedure is indicated by the filing of a timely written
grievance. Id. An aggrieved employee who files a grievance with an
agency whose negotiated agreement permits the acceptance of grievances
which allege discrimination may not thereafter file a complaint on the
same matter under part 1614, irrespective of whether the agency has
informed the individual of the need to elect or of whether the grievance
has raised an issue of discrimination. Id. Any such complaint filed
after a grievance has been filed on the same matter shall be dismissed
without prejudice to the complainant's right to proceed through the
negotiated grievance procedure. Id. See also 29 C.F.R. � 1614.107(a)
(4) (agencies must dismiss a complaint where complainant has raised the
matter in a negotiated grievance procedure that permits allegations of
discrimination and � 1614.301 indicates that the complainant has elected
to pursue the [grievance] process).
Section 55.4 of the collective bargaining agreement in effect at the time
stated that allegations of discrimination that are based on grievable
actions could be raised in the negotiated grievance procedure. The union,
acting on complainant's behalf, invoked arbitration on October 22,
2001, and amended its invocation of arbitration on January 4, 2002.
The amended arbitration notice stated:
The Union . . .amends the pending arbitration . . .to include the
following: (1) the Employer's December 17, 2001, decision to suspend
[complainant] for an additional 11 days; (2) the Employer's harassment of
[complainant]; (3) subjecting [complainant] to a hostile work environment;
(4) disparate treatment regarding leave and attendance, training,
developmental opportunities, work assignments, lunch, overtime, arrival
time and other working conditions; . . . (6) failure to accommodate
[complainant's] disability; (7) refusal to accommodate [complainant's]
disability, as exemplified by the December 17, 2001 discipline decision;
and (8) failure to abide by the October 2000 settlement agreement with
complainant. The pending arbitration and the additional disciplinary
action by the Employer are �inextricably intertwined� since the additional
11 day suspension is a further implementation of the Employer's original
October 17, 2001 disciplinary action. Furthermore, all the other
issues and matters were raised in the reply to the proposed discipline
or have been raised and considered by the employer in connection with
the disciplinary matter. The disciplinary matter is one part of the
Employer's campaign to remove [complainant] from employment and the
Employer's creation of intolerable working conditions. Accordingly,
all of the issues are �inextricably intertwined.� . . .
The Employer is violating the Civil Rights Statutes, including Title
VII of the Civil Rights Act, 42 U.S.C. � 2000e et seq. . . .The
Employer is discriminating against [complainant] based on her
race, sex and disability, is engaging in disparate treatment and
retaliating against her for her participation in the EEO process and
opposing discrimination. . . .The Union has notified the Employer that
[complainant] is in a hostile work environment. The Union has also
notified the Employer that [complainant] is suffering from a disability,
and requires reasonable accommodations, including a transfer to another
department.
After reviewing the record, the Commission finds that the matters raised
in complainant's EEO complaint dated March 20, 2002, are identical to
those raised in the negotiated grievance proceeding dated January 4, 2002.
The identity between the allegations in the grievance and the allegations
in the complaint is set forth as follows:
Alleged Adverse Action
Grievance Allegations
EEO Complaint Allegations
disciplinary actions
(1)
(10), (16)
harassment
(2), (3)
(1), (2), (8), (11)
disparate treatment - terms
(4)
(5) - (7), (12) - (15), (18)
failure to accommodate
(6), (7)
(3), (4), (9)
Moreover, allegation (3) in the EEO complaint, concerning complainant's
reassignment to another supervisor, is specifically referenced in the
grievance as well. The record clearly establishes that complainant made
her election to file a grievance on her claim, and cannot thereafter
file an EEO complaint on the same matter. The Commission therefore
finds that the agency properly dismissed that portion of the March 20,
2002 EEO complaint encompassing allegations (1) through (16).
We find that although the agency dismissed issue (11) pursuant to
29 C.F.R. � 1614.107(a)(7), this issue is more properly dismissed
pursuant to 29 C.F.R. � 1614.107(a)(4), for raising the same matter in
the grievance process. Specifically, we find that the claim that the
agency encouraged other employees to file grievances against her in order
to harass her is encompassed within grievance allegations (2) and (3).
With respect to allegation (17), regarding the breach of settlement issue,
the arbitrator issued an interim ruling on September 27, 2002, that he did
not have jurisdiction to hear that matter. Nevertheless, the Commission
finds that complainant improperly raised the issue of breach on appeal.
If complainant believes that the agency has failed to comply with the
terms of a settlement agreement, she must notify the EEO director of the
alleged noncompliance within 30 days of when she knew or should have known
of it. 29 C.F.R. � 1614.504(a). There are no indications in the record
that complainant followed the procedures outlined in subsection 504(a).
The Commission therefore finds that the agency properly dismissed that
portion of the March 20, 2002 EEO complaint encompassing allegation (17).
As an aside, the Commission notes that complainant requested that her
appeal be held in abeyance pending the outcome of the grievance, and that
the agency requested that the appeal be dismissed without prejudice for
the same reason. Neither procedure is authorized by 29 C.F.R. Part
1614. The proper procedure would have been for complainant to have
submitted a written request to the Commission to withdraw her appeal.
Accordingly, the agency's dismissal of the complaint 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
June 26, 2003
__________________
Date
1In its decision, the agency noted that issues
(19), (20), and (21), were raised during EEO counseling. As described
in this decision, the agency dismissed these additional three issues on
procedural grounds. Because complainant does not challenge the dismissal
of these three issues on appeal, we will not review their dismissal in
this decision.