01A40558
03-24-2004
Agency.
Felita Mills v. Securities and Exchange Commission
01A40558
03-24-04
.
Felita Mills,
Grievant,
v.
William H. Donaldson,
Chairman,
Securities and Exchange Commission,
Agency.
Appeal No. 01A40558
DISMISSAL
On October 31, 2003, pursuant to 29 C.F.R. � 1614.401(d), grievant
filed the instant appeal with the Commission. Grievant had filed a
grievance alleging that a 14-day suspension for absence without leave
(AWOL) violated, among other things, Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The record reflects that, on December 18, 2002, the National Treasury
Employers Union (Union) formally invoked arbitration in the present
matter, but on September 23, 2003, the Union withdrew its invocation.
In a letter to grievant, dated September 18, 2003, the Union told
grievant that she had 30 days after its withdrawal of invocation of
arbitration to file an appeal with the Commission. On October 31, 2003,
grievant filed her appeal with the Commission, and included a copy of
the Union's September 18, 2003 decision to her, as well as a copy of her
Civil Complaint for Damages before the United States District Court for
the District of Columbia, Case No. 1:03CV02224.<1>
EEOC regulation 29 C.F.R. � 1614.401(d) provides that a grievant
may appeal to the Commission from a final decision of the agency,
the arbitrator, or the Federal Labor Relations Authority (FLRA) on a
grievance when an issue of employment discrimination was raised in a
negotiated grievance procedure that permits such issues to be raised.
Here, the record reflects that grievant has not received a decision
from an arbitrator with regard to her 14-day suspension. Although the
Union told grievant that she had thirty (30) days after its withdrawal of
invocation of arbitration in which to file an appeal with the Commission,
the Commission only has authority review discrimination claims where there
has been a final decision issued by the agency, an arbitrator, or the
(FLRA).<2> Accordingly, we find that grievant's appeal is premature.<3>
For the reason stated herein, grievant's appeal of her 14-day suspension
is DISMISSED.
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).
Grievant'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
____03-24-04______________
Date
1 In her Civil Complaint, grievant claims that the agency discriminated
against her in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq. when her immediate
supervisor allegedly sexually harassed her and created a hostile work
environment.
2 We note that complainant filed her appeal thirty-eight (38) days
after the Union withdrew its invocation of arbitration.
3 To the extent that grievant is alleging that her 14-day suspension
was related to or part of her claim of sexual harassment and/or hostile
work environment, her discrimination claim must be dismissed from the EEO
process. EEOC Regulations 29 C.F.R. � 1614.409 provides that the filing
of a civil action "shall terminate Commission processing of the appeal."
Commission regulations mandate dismissal of the EEO complaint under these
circumstances so as to prevent a grievant from simultaneously pursuing
both administrative and judicial remedies on the same matters, wasting
resources, and creating the potential for inconsistent or conflicting
decisions, and in order to grant due deference to the authority of the
federal district court. See Stromgren v. Department of Veterans Affairs,
EEO request No. 05891079 (May 7, 1990); Kowitz v. United States Postal
Service, EEOC Request No. 05880114 (October 25, 1988).