Tonya M. Collins, Complainant,v.Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionFeb 22, 2007
0120070786 (E.E.O.C. Feb. 22, 2007)

0120070786

02-22-2007

Tonya M. Collins, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.


Tonya M. Collins,

Complainant,

v.

Henry M. Paulson, Jr.,

Secretary,

Department of the Treasury,

Agency.

Appeal No. 0120070786

Agency No. EEODFS060387F

DECISION

Complainant filed a timely appeal with this Commission from the

agency's decision dated October 23, 2006, 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. Upon review, the Commission finds that complainant's complaint

was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(4). In a

complaint dated September 7, 2006, complainant alleged that she was

subjected to discrimination on the bases of race (African-American)

and reprisal for prior protected EEO activity under Title VII of the

Civil Rights Act of 1964 when she was suspended for three days.

The agency dismissed the complaint because complainant filed a grievance

regarding the same matter. 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

claims 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.

The record contains information that the grievance system allowed for

claims of discrimination to be raised.

In her appeal, complainant argues that she filed a grievance regarding

the agency's failure to give her seven days notice before any suspensions

can take place, not the suspension itself. However, an examination of

the grievance dated June 22, 2006 states "this grievance is in regards

to the three day suspension...." The grievance also stated that as

relief, it requested that "the disciplinary action be reduced to a written

reprimand and/or any other relief or remedy that may be appropriate."

Thus, it is clear that the grievance concerned the suspension. Although

complainant later withdrew her grievance, that does not negate her choice

of forums regarding this matter. Accordingly, the agency's final decision

dismissing complainant's 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

February 22, 2007

__________________

Date

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0120070786

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120070786