01A11821_r
09-26-2002
Carla S. Smith, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Carla S. Smith v. Department of Transportation
01A11821
September 26, 2002
.
Carla S. Smith,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A11821
Agency No. 5-01-5014
DECISION
Upon review, the Commission finds that the agency properly dismissed
complainant's consolidated complaints. See 29 C.F.R. � 1614.606.
In her complaints, both dated October 24, 2000, complainant claims that
she was discriminated against in retaliation for prior EEO activity when:
The agency attempted to impede complainant's right to due process when
management did not allow the EEO Counselor to interview members of the
staff regarding complainant's informal complaint;
(a) A co-worker was allowed to scrutinize complainant's worksheets for
approximately one and one half years;
Complainant's supervisor failed to verify complainant's work prior to
giving awards;
Complainant's supervisor failed to use progressive discipline and did
not provide complainant an opportunity to correct her behavior; and
Complainant was suspended for 14 days in 1997 for the intentional
falsification of production data on her worksheets where her supervisor
did not identify on a monthly basis the items she was accused of
falsifying.
The agency dismissed claim 1 for failure to state a claim, pursuant
to 29 C.F.R. � 1614.107(a)(1). We find that complainant's claim of
improper processing in claim 1 fails to state a claim because as a result,
complainant did not suffer a personal loss or harm to a term, condition,
or privilege of her employment. Therefore, claim 1 was properly dismissed
pursuant to 29 C.F.R. � 1614.107(a)(1).
The agency dismissed claim 2 pursuant to 29 C.F.R. � 1614.107(a)(4),
finding that complainant had raised the matters in a negotiated grievance
procedure that permits allegations of discrimination.
EEOC Regulation 29 C.F.R. � 1614.301(a) states that when 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 a negotiated grievance procedure, a person wishing
to file a complaint or a grievance on a matter of alleged employment
discrimination must elect to raise the matter under either Part 1614 or
the negotiated grievance procedure, but not both. The regulation provides
that the election is indicated by the filing of a written complaint or
timely grievance, whichever is done first. The regulation 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.
We find that complainant filed a written grievance on December 3, 1997,
regarding the same matters as those raised in claims 2(a) and 2(c),
as well as claim 3, of her EEO complaint.<1> As an employee of the
Department of Transportation, complainant is employed by an agency
subject to 5 U.S.C. � 7121(d). Complainant is covered by a collective
bargaining agreement that permits allegations of discrimination to
be raised in the negotiated grievance procedure. Complainant filed a
timely grievance on December 3, 1997. Complainant filed her complaints
no earlier than October 24, 2000. Complainant first elected to file
a grievance regarding the matters raised in claims 2(a), 2(c), and 3,
of her EEO complaints. Therefore, these claims are properly dismissed
pursuant to 29 C.F.R. � 1614.107(a)(4).
Contrary to the agency's assertion in its final decision, claim 2(b)
was not raised by complainant in her grievance. Claim 2(b) was properly
dismissed, however, pursuant to 29 C.F.R. � 1614.107(a)(1), for stating
the same claim that is pending before or has been decided by the agency
or Commission. Complainant raised the claim articulated in claim 2(b)
in Agency Number
5-97-5105. This claim was raised in complainant's complaint dated August
14, 1997. Complainant and her representative withdrew the complaint on
July 11, 2000.
Therefore, the agency's decision dismissing complainant's complaint
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 (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
September 26, 2002
__________________
Date
1Since we are dismissing claim 3 on the
ground that complainant raised the same matter in a negotiated grievance
procedure that permits allegations of discrimination, pursuant to
29 C.F.R. � 1614.107(a)(4), we will not address whether claim 3 was
properly dismissed for stating the same claim that is pending before or
has been decided by the agency or Commission, pursuant to 29 C.F.R. �
1614.107(a)(1).