0120080525
03-12-2009
Blondell M. Peterson, Complainant, v. Michael O Leavitt, Secretary, Department of Health and Human Services, Agency.
Blondell M. Peterson,
Complainant,
v.
Michael O Leavitt,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120080525
Agency No. NIHNIEHS060002
Hearing No. 430200700125X
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated October 11, 2007, adopting the decision of an
EEOC Administrative Judge (AJ) that dismissed 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. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
At the time of the events at issue, complainant was employed by the
agency at the National Institute of Environmental Health Science as
a Writer-Editor, GS-9. In June 2006, complainant filed a formal EEO
complaint alleging that she was subjected to discrimination on the bases
of race (African American), age (44 years at the time of the earliest
incident), and reprisal for prior protected EEO activity when:
1. she was terminated from her position effective March 29, 2006;
2. on March 14, 2006 she was forced to take administrative leave
immediately after she was notified of the termination and was harassed
as she was packing her personal belongings;
3. on November 2, 2005, complainant was placed on a performance
improvement plan (PIP), which was later extended on January 31, 2006;
4. she was restrained from performing her assigned duties;
5. she received an unacceptable rating on her performance evaluation
dated January 31, 2006;
6. she was not allowed to work a flexible schedule and was made to vacate
the building by 5 pm;
7. her request for reassignment was denied;
8. her request for science writing training was denied;
9. her request for reimbursement of travel expenses was denied;
10. on May 2, 2005, complainant was told that she had completed her
probationary period, however, the agency subsequently stated that she
was subjected to a one-year probationary period; and
11. the agency failed to expunge complainant's personnel file as ordered
by the Commission's Office of Federal Operations (OFO) on March 18,
2005.1
Following an investigation into the complaint, complainant requested
a hearing before an EEOC Administrative Judge (AJ). Thereafter, the
AJ issued a decision without a hearing dismissing the complaint after
determining that complainant had elected to proceed with her complaint
under the negotiated grievance procedure and the Merit Systems Protection
Board (MSPB) prior to filing her EEO complaint. On October 11, 2007, the
agency adopted the AJ's dismissal decision. The instant appeal followed.
On appeal, complainant argues that the AJ erred in dismissing the
complaint. Specifically, complainant argues that she sought EEO
counseling prior to filing in her grievance or the appeal with the
MSPB.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(4) provides for the
dismissal of a complaint where the complainant has raised the matter in
a negotiated grievance procedure that permits claims of discrimination
or in an appeal to the Merit Systems Protection Board and � 1614.301
or � 1614.202 indicates that the complainant has elected to pursue the
non-EEO process first.
In the instant case, the record shows that complainant filed two
grievances under the agency's negotiated grievance process, one on
January 30, 2006, and a second on March 21, 2006.2 The January 30
grievance addressed complainant being placed on the PIP, as well as the
denial of reimbursement for travel expenses. The March 21 grievance
addressed her termination as well as being placed on administrative
leave and being escorted from the building. In her Formal EEO Complaint,
complainant ticked off a box next to the question "have you filed a
union grievance?" but she did not indicate the date or dates of any such
grievance, nor did she indicate exactly what issues were addressed in such
grievance or grievances. The record also establishes that on April 13,
2006, complainant appealed her termination to the MSPB. It appears that
she subsequently withdrew her appeal from MSPB.
Complainant argues that she elected the EEO process by seeking EEO
counseling on March 17, 2006, before filing either her grievance or the
MSPB appeal. We note, however, that under 29 C.F.R. � 1614.301(a), in
determining whether an employee has elected to proceed with the grievance
process or the EEO process, an "election" to choose the EEO process
"is indicated only by the filing of a written complaint: use of the
pre-complaint process . . . does not constitute an election for purposes
of this section." Id. Thus, while complainant may have contacted an EEO
counselor before filing a grievance, she did not file her formal complaint
of discrimination until June 15, 2006, after she filed both grievances.
Therefore, the AJ correctly determined that complainant elected to
proceed in the grievance process before the EEO process. Furthermore,
since the MSPB appeal addressed the same issue as the March 21 grievance,
we need not address the AJ's findings with regards to the MSPB appeal.
Therefore, as the record establishes that complainant elected the
grievance process before electing the EEO process to address her removal
and the PIP, as well as the events which were inextricably intertwined
with them, the AJ properly dismissed claims 1 - 9 pursuant to 29 C.F.R. �
1614.107(a)(4).
As regards issues 10 and 11, these issues involve enforcement of
the Commission's prior order in Blondell Peterson v. Department of
Health and Human Services, Appeal No. 0720040070 (March 18, 2005).
In September 2007, the Commission docketed a Petition for Enforcement in
which complainant was asserting that the agency was not complying with
the Commission's order. In a decision issued on August 18, 2008, the
Commission determined that the agency was, in fact, in compliance with
its order, including the decision to subject her to another one-year
probationary period. Compliance issues do not raise new claims of
discrimination, but should be, as was the case here, addressed in the
action where the order was issued. Therefore, the dismissal of claims
10 and 11 is also appropriate. See � 1614.107(a)(1).
Accordingly, the agency's adoption of the AJ's dismissal of the complaint
is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
March 12, 2009
__________________
Date
1 The claims have been reordered for ease of reference.
2 The record establishes that the agency's negotiated grievance process
permits claims of discrimination.
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0120080525
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120080525