01984402
01-12-2000
Annmarie C. Taggio, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Annmarie C. Taggio v. Department of Transportation
01984402
January 12, 2000
Annmarie C. Taggio, )
Complainant, )
)
v. ) Appeal No. 01984402
) Agency No. 3-98-3058
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
____________________________________)
DECISION
On May 13, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) received by her on May 4, 1998,
pertaining to her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq.<1> The agency, in its FAD, defined complainant's
claim as alleging discrimination on the basis of sex (female) when
complainant was denied a transfer to Charlotte Approach Control (CLT
APCH), NC, and complainant's union grievance was ignored while a male
air traffic controller was transferred to CLT APCH in settlement of his
union grievance.
The agency dismissed the complaint for alleging the same matter previously
raised in a negotiated grievance. Specifically, the agency found that
complainant's EEO complaint encompassed the same matters raised in FAA
Grievance No. (NC) SO-97-204-GSO-02.
On appeal, complainant argues that the EEO complaint and grievance involve
different issues. According to complainant, her grievance concerned the
agency's failure to follow proper procedures when it denied her transfer
request to CLT APCH, but her EEO complaint concerns the unfair treatment
she received in the grievance process. Complainant argues that a male
employee with an identical grievance was given a transfer to CLT APCH to
settle his grievance, but the agency has refused to settle complainant's
grievance.
The record includes a copy of complainant's grievance, dated May 23,
1997, concerning the agency's failure to follow procedures when it
denied her transfer to CLT APCH. The record also includes a copy of
the grievance procedures, which provide that a grievant may file with
the union "or any other procedure available in law or regulation, but
not both." In complainant's formal complaint, dated April 19, 1998,
complainant notes that she did not receive a transfer to CLT APCH, and
that a male employee's grievance concerning a transfer to the CLT APCH
was resolved at the regional level while the "regional level office
refuses to hear or resolve" complainant's grievance.
EEOC Regulations provide that an agency may dismiss a complaint that
has been raised in a negotiated grievance procedure that permits
claims of discrimination. See 64 Fed. Reg. 37,644, 37,656 (1999)(to be
codified and hereinafter cited as 29 C.F.R. �1614.107(a)(4)) The record
shows that under the terms of the agency's union agreement, employees
have the right to raise matters of alleged discrimination under the
statutory procedure or the negotiated grievance procedure, but not both.
Further, complainant mentions her denied transfer to CLT APCH in her
formal complaint, and in her grievance. Accordingly, to the extent
that complainant is alleging harm from the initial transfer denial,
the Commission finds that the agency properly dismissed the complaint
pursuant to 29 C.F.R. �1614.107(a)(4).
To the extent that complainant alleges harm from the grievance procedure,
the Commission finds that complainant is attempting to lodge a collateral
attack on the grievance process. A collateral attack involves a challenge
to another forum's proceeding, i.e., the grievance process, the EEO
process in a separate case, the unemployment compensation process, the
workers' compensation process, the tort claims process, and so forth. See
Story v. United States Postal Service, EEOC Request No. 05960499 (June 13,
1997) (citing Lau v. National Credit Union Administration, EEOC Appeal
No. 01941170 (Sept. 8, 1994), aff'd EEOC Request No. 05950037 (Mar. 18,
1996)). The Commission has held that an employee cannot use the EEO
complaint process to lodge a collateral attack on another proceeding.
See Wills v. Department of Defense , EEOC Request No. 05970596 (July
30, 1998); Kleinman v. United States Postal Service, EEOC Request No.
05940585 (Sept. 22, 1994); Lingad v. United States Postal Service,
EEOC Request No. 05930106 (June 25, 1993).
The proper forum for complainant to have raised his challenges to actions
which occurred during grievance proceedings was at those proceedings.
It is inappropriate to now attempt to use the EEO process to collaterally
attack actions which occurred during the arbitration process. Such
attacks must be dismissed for failure to state a claim. See Lingad,
supra (claim alleging harm from ruling in grievance process fails to
state a claim under the EEO process); see also 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified at 29 C.F.R. �1614.107(a)(1)) (requiring
dismissal of complaints that fail to state a claim).
CONCLUSION
Accordingly, the agency's decision is AFFIRMED.
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:
January 12, 2000
____________________________
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:
_______________ __________________________
Date Equal Employment Assistant
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.