0120082591
11-02-2011
Cheryl Newman, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, (Veterans Health Administration), Agency.
Cheryl Newman,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
(Veterans Health Administration),
Agency.
Appeal No. 0120082591
Hearing No. 430-2008-00243X
Agency No. 200405582007102740
DECISION
On May 20, 2008, Complainant filed an appeal from the Agency’s April
17, 2008 final decision concerning her equal employment opportunity (EEO)
complaint alleging 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq. The Commission deems this
appeal as timely and accepts it pursuant to 29 C.F.R. § 1614.405(a).
For the following reasons, the Commission AFFIRMS the final decision,
in part and VACATES it, in part.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Nursing Assistant at the Agency’s Medical Center in Durham,
North Carolina. On May 22, 2007, Complainant contacted an EEO Counselor
and filed a formal EEO complaint on July 12, 2007, alleging that the
Agency discriminated against her on the bases of race (African-American)
and disability (Thoracic Lumbar Sprain) when: (1) on April 25, 2007,
management removed Complainant from her assigned duties and initiated
an investigation regarding an allegation of patient abuse; (2) on April
26, 2007, management temporarily re-assigned Complainant to work in
the linen room although she is not an EMS employee; (3) on May 4, 2007,
management gave Complainant duties (washing walls and hand rails) that
exceeded the scope of her permanent workers’ compensation light duty
restrictions; and (4) on May 4, 2007, management failed to provide
a reasonable accommodation for Complainant's permanent workers’
compensation light duty restrictions when she was ordered to wash walls.
On December 19, 2007, Complainant amended her EEO complaint to include
the allegation that she was discriminated against on the same bases when
on October 8, 2007, management terminated her employment.
At the conclusion of the investigation, Complainant was provided a
copy of the investigative file and requested a hearing before an EEOC
Administrative Judge (AJ). The record shows that on March 21, 2008,
an AJ with the Charlotte District Office notified Complainant that it
lacked jurisdiction over her EEO complaint as there is no right to a
hearing before an EEOC Administrative Judge on a mixed-case complaint
(citing, EEO MD-110 Chapter 4, II. Mixed Case Complaint and Appeals
(November, 9, 1999). Accordingly, the EEO complaint was remanded to the
Agency for issuance of a final decision.
In its final decision, the Agency dismissed the amended termination
claim on the basis that Complainant failed to initiate EEO contact on
a timely basis. The Agency addressed the merits of the remainder of
Complainant’s claims (Claims 1-4) in its decision.
CONTENTIONS ON APPEAL
On appeal, Complainant asserts that she is entitled to an EEO hearing
before an AJ with respect to Claims 1-4 since those claims were not
mixed. Complainant also states that she raised the termination claim
in a grievance action before she sought to add it to her pending EEO
complaint. The Agency argues that it had no knowledge of the grievance
when it accepted Complainant’s removal claim and amended it to her
pending EEO complaint.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.301 requires that where 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 the negotiated grievance procedure, an election must
be made to proceed under either the negotiated grievance procedure
or the EEO complaint procedure but not both. An aggrieved employee
who files a grievance in writing with an agency, whose negotiated
agreement permits the inclusion of allegations of discrimination, may
not thereafter file a complaint on the same matter, irrespective of
whether the agency has informed the individual of the need to elect,
or whether the grievance actually raised allegations of discrimination.
EEOC Regulation 29 C.F.R. § 1614.107(d) provides that the agency shall
dismiss a complaint or portion thereof where the complainant has elected
to pursue the allegations under a negotiated grievance procedure.
As an employee of the Department of Veterans Affairs, Complainant
is employed by an agency subject to 5 U.S.C. § 7121(d). See Gage
v. Department of Veterans Affairs, EEOC Appeal No. 0120100604 (April
23, 2010). The record reveals that Complainant filed a grievance some
time prior to October, 2007.1 Complainant’s termination was the
only issue raised in the grievance action which was filed before she
attempted to amend her EEO complaint. We note that the record contains a
copy of the collective bargaining agreement which shows that it permits
allegations of discrimination to be raised in the agency's negotiated
grievance procedure. Thus, we find that since Complainant elected to
raise the termination issue in the negotiated grievance procedure, she is
precluded from raising the same matter in the EEO process. 29 C.F.R. §
1614.301(a). Accordingly, we AFFIRM the Agency’s dismissal of the
termination claim, albeit for reasons different than those asserted in
the Agency’s final decision.
Accordingly, without the termination claim, the remaining claims should
not have been classified as a mixed case complaint. Consequently, the
AJ’s denial of Complainant’s hearing request on the grounds that
her complaint involved a mixed case matter was improper. Accordingly,
we remand these claims 1-4 for a hearing before an EEOC AJ.
CONCLUSION
Therefore, after a careful review of the record, including Complainant's
arguments on appeal, the Agency's response, and arguments and evidence
not specifically discussed in this decision, we AFFIRM the Agency's
final decision to dismiss the termination claim. We VACATE the final
decision with regard to Claims 1-4 and REMAND the complaint for processing
consistent with the Order below.
ORDER
The Agency shall submit the complaint file for Claims 1-4 to the
Hearings Unit of the Charlotte District Office within fifteen (15)
calendar days of the date this decision becomes final. The Agency shall
provide written notification to the Compliance Officer at the address set
forth below that the complaint file has been transmitted to the Hearings
Unit. Thereafter, the Administrative Judge shall issue a decision on
the complaint in accordance with 29 C.F.R. § 1614.109 and the Agency
shall issue a final action in accordance with 29 C.F.R. § 1614.110.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
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 77960, Washington, DC
20013. 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 (M0610)
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), at 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 (T0610)
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 (Z0610)
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
November 2, 2011
__________________
Date
1 The record contains an October 1, 2007 notice to the Director of
Durham Medical Center from the president of the union indicating that
Complainant’s grievance was being submitted at Step 3.
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01-2008-2591
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013