01974871
04-14-1999
Sadie P. DeSantis, Appellant, v. Janet Reno, Attorney General, Department of Justice, Agency.
Sadie P. DeSantis v. Department of Justice
01974871
April 14, 1999
Sadie P. DeSantis, )
Appellant, )
) Appeal No. 01974871
v. ) Agency No. I-95-6727
)
Janet Reno, )
Attorney General, )
Department of Justice, )
Agency. )
)
DECISION
On May 28, 1997, appellant filed a timely appeal of a May 7,
1997 final agency decision dismissing her complaint pursuant to 29
C.F.R. �1614.107(d) on the grounds that appellant appealed her complaint
to the Merit Systems Protection Board (MSPB) and filed a grievance
under a negotiated grievance procedure that permits allegations of
discrimination.
EEOC Regulation 29 C.F.R. �1614.107(d) provides that an agency shall
dismiss a complaint or portion of a 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 the provisions of EEOC Regulation 29 C.F.R. �1614.301
or �1614.302 indicate that the complainant has elected to pursue the
non-EEO process.
EEOC Regulation 29 C.F.R. �1614.301(a) states that 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 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. 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 this part 1614
irrespective of whether the agency has informed the individual of the need
to elect or whether the grievance has raised an issue of discrimination.
Any such complaint filed after a grievance filed on the same matter
shall be dismissed without prejudice to the complainant's right to
proceed through the negotiated grievance procedure.
The record reflects that in her May 22, 1995 EEO complaint, appellant
alleged that she was discriminated against on the bases of age (68)
and physical disability when on April 24, 1995, she received a letter
informing her that she was suspended for 30 days. The record also
indicates that appellant filed an appeal with the MSPB regarding her
suspension and raised age and disability discrimination. In an August
31, 1995 Initial Decision, the MSPB dismissed the appeal for lack of
jurisdiction, noting that appellant had elected to pursue the negotiated
grievance procedure before filing her appeal with the MSPB and had not
yet obtained a final decision under the grievance procedure.<1> Because
the MSPB dismissed the appeal on jurisdictional grounds, we find that
the agency's dismissal of the present complaint on the grounds that she
had filed an appeal with the MSPB was therefore improper.<2> See Weaver
v. Department of the Navy, EEOC Request No. 05900230 (April 26, 1990).
The agency's dismissal of the complaint on the alternative grounds that
appellant filed a grievance was also improper. Although the agency
indicated that the collective bargaining agreement permits allegations
of discrimination, the record does not contain a copy of the collective
bargaining agreement or its relevant provisions. The record also does
not contain any records concerning the grievance, although these records
were referenced in the MSPB's initial decision.
Consistent with our discussion herein, the agency's final decision
is REVERSED and the complaint is REMANDED to the agency for further
processing.
ORDER
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
of the appropriate rights within one hundred fifty (150) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgement to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. 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.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
April 14, 1999
DATE Ronnie Blumenthal, Director
1An appellant is deemed to have chosen either the MSPB's appeal
procedures or negotiated grievance procedures when he or she timely
files a grievance, whichever occurs first. See 5 C.F.R. �1201.3(c)(2).
An employee who alleges prohibited discrimination may ask the MSPB
to review a final decision under the negotiated grievance procedure.
See 5 C.F.R. �1201.3(c)(3).
2EEOC Regulation 29 C.F.R. �1614.302(c)(2)(ii) provides that if the MSPB
does not have jurisdiction over a matter, the agency shall recommence
processing of the complaint.