Wendy L. Boston, Complainant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionDec 6, 1999
01974735 (E.E.O.C. Dec. 6, 1999)

01974735

12-06-1999

Wendy L. Boston, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.


Wendy L. Boston v. Department of the Treasury

01974735

December 6, 1999

Wendy L. Boston, )

Complainant, )

)

v. ) Appeal No. 01974735

) Agency No. 97-1182

Lawrence H. Summers, )

Secretary, )

Department of the Treasury, )

Agency. )

)

DECISION

On May 27, 1997, the complainant initiated an appeal from a final decision

of the agency dated April 29, 1997 concerning her complaint of unlawful

employment discrimination in violation of the Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.<1> The appeal

is timely (see 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified as 29

C.F.R. �1614.402(a)), and is accepted under 64 Fed. Reg. 37,644, 37,659

(1999) (to be codified as 29 C.F.R. �1614.401(a)).

ISSUES PRESENTED

Whether the agency properly dismissed the complainant's complaint because

she previously elected to file a grievance on the same matter.

BACKGROUND

On November 1, 1996, the agency proposed removing the complainant

for absences without approved leave (AWOL), making false statements

in matters of official interest, and failure to follow instructions.

It sustained the proposal on February 26, 1997.

By letter dated March 19, 1997, the union contested the removal on the

complainant's behalf by invoking arbitration. It alleged race, sex,

and disability discrimination, citing Article 41, �2 of the a collective

bargaining agreement (CBA). This provision of the CBA permits allegations

of discrimination to be raised in the grievance process.

On April 1, 1997, the complainant filed a formal complaint of

discrimination alleging she was discriminated against on the bases of race

(black) and reprisal (EEO activity) when she was removed.

ANALYSIS AND FINDINGS

An agency shall dismiss a complaint or portion of a complaint where

the complainant has elected to raise the matter in a negotiated

grievance procedure that permits allegations of discrimination. See 64

Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. �1614.107(a)(4)).

EEOC Regulation 29 C.F.R. �1614.301 provides that where 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 the negotiated grievance procedure, an election must be

made to proceed under either the negotiated grievance procedure or the

EEO complaint procedure (part 1614). The regulation provides that the

election is indicated by the filing of a written complaint or timely

grievance, whichever is done first. It also provides that 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 whether the grievance has raised an issue of

discrimination.

As a former employee of the Department of the Treasury, the complainant

was employed by an agency subject to 5 U.S.C. 7121(d). Also, the

complainant was covered by a collective bargaining agreement that

permitted allegations of discrimination to be raised in the negotiated

grievance procedure.

On appeal, the complainant argues that she did not authorize the union

to file a grievance on her behalf. She concedes that she met with the

union regarding her removal. She avers that the union advised her of her

right to elect between the grievance and the EEO complaint procedure,

and she did not give a "direct answer." The complainant explains that

she was dissatisfied with the way the union handled her past grievances.

She submits a photocopy of an April 9, 1997 letter to her by the

Assistant Counsel for the union. The Assistant Counsel wrote that he

wished to clarify the union's role as the complainant's representative

in her removal appeal. The letter stated that it was important that the

complainant realize and agree that as the exclusive representative in

arbitration proceedings, the union retained sole discretion and control

of the appeal. It asked her to sign an agreement to this effect, which

also contained other related provisions. The complainant indicates she

did not sign this agreement.

The complainant averred that on February 24, 1997, the union relayed a

message from the agency that the complainant would be removed effective

February 28, 1997 unless she resigned and dropped all her charges against

the agency. On February 24, 1997, the complainant wrote a letter

to the National President and Assistant Counsel of the union stating

that the agency decided to terminate her effective February 28, 1997.

She complained about the adequacy of the representation she received from

the union, and asked the National President to personally review her case.

The February 26, 1998 letter of removal was effective February 28, 1997.

The complainant contends that she was not represented by the union on

her removal and did not authorize it to file a grievance on her behalf.

She argues, in effect, that she did not elect the grievance forum.

We disagree. The complainant's February 24, 1997 letter to the union

indicated she wanted the union to represent her on the removal matter,

albeit at a higher level of quality. Further, the union's letter to the

complainant dated April 9, 1997 states that it was representing her on

the removal matter. The complainant submits no statements from union

officials supporting her contention that the union acted unilaterally.

The complainant's refusal to sign an agreement with the union clarifying

the terms of its representation after the grievance was filed does not

show that the union acted unilaterally. The complainant's contentions

are not supported by a preponderance of the evidence.

The agency properly dismissed the complainant's complaint pursuant to

29 C.F.R. �1614.107(a) (4).

CONCLUSION

Based upon a review of the record, and for the foregoing reasons, it

is the decision of the Commission to AFFIRM the final decision of the

agency which dismissed the complainant's complaint.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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:

Dec. 6. 1999

_________________________ ____________________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_________________________ __________________________

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

Federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.