02A20008_r
05-15-2003
Agency.
Wendy Davis v. Department of Health and Human Services
02A20008
May 15, 2003
.
Wendy Davis,
Grievant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 02A20008
DECISION
On March 5, 2002, pursuant to 29 C.F.R. � 1614.401(d), grievant filed the
instant appeal with the Commission, concerning an arbitration decision
on her grievance dated August 21, 2001. The Commission accepts the
appeal.<1> 29 C.F.R. � 1614.405.
The Commission's regulations, in conjunction with 5 U.S.C. � 7121 (d)
of the Civil Service Reform Act, provide that where a grievance procedure
permits a claim of discrimination to be raised and considered, an employee
wishing to raise an allegation of discrimination must elect the forum in
which to pursue the matter. 29 C.F.R. � 1614.301(a). Such a complaint
of alleged employment discrimination may be raised under either the
EEO statutory process or the negotiated grievance procedure, but not
both. Id. If the employee elects to raise an issue of discrimination in
the negotiated grievance procedure, the employee has the right to appeal
the agency's final decision on the grievance concerning the discrimination
issue to the Commission. 29 C.F.R. � 1614.401(d). The Commission's
regulations provide that a grievant may appeal to the Commission from a
final decision of the agency, the arbitrator, or the Federal Relations
Authority on a grievance when an issue of employment discrimination was
raised in a negotiated grievance procedure that permits such issues to
be raised. Id.
The record reflects that complainant filed a grievance on June 7, 2000.
Therein, complainant raised claims of discrimination based on race
(African-American). Furthermore, the record demonstrates that a hearing
on the grievance was conducted before an Arbitrator, who rendered a
decision on August 21, 2001. In that decision, the Arbitrator determined
that complainant raised the following claims of discrimination:
Complainant's Special Assistant position is improperly classified as
a GS-13, and should instead be up-graded to a GS-14 position;
When complainant attempted to obtain a desk audit for the purpose of
up-grading her Special Assistant position from a GS-13 to a GS-14, her
supervisor refused to approve the position description she prepared,
and otherwise failed to assist complainant in obtaining the position
up-grade;
For many years, complainant performed duties commensurate to certain
white employees in GS-14 positions, but encumber only a GS-13 position
because of the agency's on-going refusal to up-grade her position; and
Complainant was not selected for the GS-14 position of Public Health
Analyst, in favor of a less qualified younger white female.<2>
Regarding claim 1, the Arbitrator determined that it constituted a
position classification dispute, and as such, was not a proper matter
for arbitration under the prevailing union agreement. Furthermore, the
Arbitrator also determined that claims 2 and 3, though couched as claims
of continuing discrimination because of �unequal pay,� are inextricably
intertwined with the position classification dispute of claim 1, and so
also cannot be a subject of the instant arbitration. For this reason,
the arbitrator specifically declined to render a decision on claims 1,
2, and 3.
Regarding claim 4, the Arbitrator determined that complainant established
a prima facie case of race discrimination, because she showed that
she was qualified for the position, but not selected in favor of an
individual outside of her protected class. However, the Arbitrator then
found that the agency proffered legitimate non-discriminatory reasons
for its selection; namely, that the selectee had superior education and
field experience for the position at issue. Next, while the Arbitrator
considered complainant's argument disputing these reasons, as well as
her arguments that she was far better qualified than the selectee,
as evidenced, in part by receiving the highest ranking score in the
selection process, the Arbitrator found that complainant failed to
present sufficient evidence to show that the agency's reason's were
untrue or a pretext for discrimination. Therefore, the Arbitrator found
no discrimination regarding claim 4.
Claims 1 - 3
As noted above, while under 29 C.F.R. � 1614.401(d), the Commission
has the authority to review the Arbitrator's decision as it pertains to
the adjudication of complainant's discrimination claims, we note that
the Arbitrator specifically declined to consider claims 1, 2, or 3,
finding that they concerned a position classification dispute which was
not an arbitrable subject. Notwithstanding the fact that the Arbitrator
offered some analysis and opinion regarding the evidentiary submission
on these �rejected' claims, he specifically found these claims to
be non-arbitrable. The Commission has held that it is beyond our
jurisdiction to review the arbitrator's decision regarding the general
arbitrability of an issue. See Solberg v. Department of Justice, EEOC
Appeal No. 02920004 (October 15, 1993). Although on appeal complainant
presents additional comparative evidence in support of claims 1, 2,
and 3, we find that consideration of this evidence is not within the
Commission's purview in this case for the same reason.
For the reason stated herein, complainant's appeal of claims 1 - 3
is DISMISSED.
Claim 4
Regarding claim 4, we note that on appeal grievant submits a copy of her
resume and a copy of the position description for the GS-14 Public Health
Analyst position at issue. The record, however, is otherwise devoid
of any evidence regarding this claim. We find that the record lacks
sufficient information to permit us to determine whether complainant's
non-selection was the result of unlawful discrimination.
Accordingly, in order to render a determination on claim 4, we REMAND
this matter to the agency to provide the necessary evidentiary materials
regarding the selection for the position at issue, and to conduct
a supplemental investigation to complete the evidentiary record on
this matter. In particular, we note that both parties dispute the
statistical evidence and methodology presented by each, to include
omission of pertinent data, suggesting that a supplemental investigation
is indicated. Upon completion of compilation of the record and/or
supplemental investigation, the Order below also instructs the agency
to provide grievant the opportunity to again appeal the Arbitrator's
decision to the Commission.
ORDER
The agency is ORDERED to take the following action:
1. The agency shall compile an evidentiary record regarding grievant's
non-selection claim, to include the following:
A. A copy of the transcript from the hearing before the Arbitrator;
B. Information documenting the selection process, to include:
1. the race of all the candidates for the position at issue;
2. all documents, including applications, relied upon by the rating
and selecting officials in assessing the
relative qualifications of the candidates;
3. a copy of the vacancy notice; and
4. any other relevant documentation relating to the selection process.
2. The agency shall conduct a supplemental investigation to clarify
the statistical evidence referenced in the Arbitrator's decision, as
well as the appeal statements of both parties. The agency shall also
obtain an affidavit from the agency official responsible for ranking the
candidates' applications, to address why complainant received a higher
score than the selectee. The agency shall also obtain a affidavit from
the selecting official explaining why the selectee's education and field
experience were determinative factors in her selection.
3. The agency shall complete the actions described above within sixty
(60) calendar days of the date this decision becomes final. The agency
shall provide a copy of all documents generated by the above-mentioned
supplemental investigation to grievant and her attorney, and provide
grievant with the right to appeal the Arbitrator's decision to the
Commission, pursuant to 29 C.F.R. � 1614.403, within thirty (30) days
of grievant's receipt.
The agency shall provide documentary confirmation of the completion of
these actions to the Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant 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. �� 1614.407 and 1614.408.
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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the grievant 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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
May 15, 2003
__________________
Date
1On appeal, the agency argues that grievant failed to timely file the
instant appeal, and requests that it be dismissed for this reason.
In order to be timely, an appeal concerning a grievance which raises an
employment discrimination claim, must be filed at the Commission within
30 days of receipt of the final decision by an agency, arbitrator, or the
Federal Labor Relations Authority. See EEOC Management Directive-110,
Chapter 10-2, November 9, 1999. However, as noted by grievant, we find
that the agency did not provide grievant with appeal rights to the
Commission regarding the Arbitrator's decision. Therefore, we waive the
untimeliness in this instance because of the agency's failure to provide
grievant with appeal rights to the Commission regarding the Arbitrator's
decision. See 29 C.F.R. � 1614.604(c).
2The claims are not identified by number in the Arbitrator's decision,
or by the responses of the parties on appeal. They are set forth and
enumerated herein for ease of reference.