01a52376
06-01-2005
Deanna Bailey, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Deanna Bailey v. Department of Veterans Affairs
01A52376
06-01-05
.
Deanna Bailey,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A52376
Agency No. 200M-0657-2004103959
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated January 13, 2005, dismissing her complaint
of unlawful employment discrimination in violation of Section 501 of
the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 et seq. In her complaint, complainant alleged that she
was subjected to discrimination on the basis of disability when she was
not reasonably accommodated from June 19, 2004 through July 20, 2004,
resulting in Leave Without Pay for this period.
The agency dismissed complainant's claim pursuant to 29
C.F.R. 1614.605(d), because a 3rd Step Grievance was filed on June
29, 2004, regarding identical events raised in this EEO complaint.
The agency maintains that complainant raised the above matter in the
negotiated grievance procedure first and can not now raise the same
matter under part 1614.
On appeal, complainant provides a letter dated February 4, 2005, from a
Union Official indicating that the grievance was not filed on behalf of
complainant with the agency but was filed at the 3rd Step on behalf of
all bargaining unit employees regarding the agency's �light duty� policy.
The Union Official maintains that complainant's name was mentioned in
the grievance only as an example of a causality of the agency's policy.
The Union Official also maintains that complainant as an individual
could not have filed an initial 3rd Step Grievance. The Union Official
indicates that a 3rd Step Grievance would have been denied by the agency
for failure to follow the negotiated grievance procedure.
In response, the agency contends that the union grievance filed directly
relates to the issues in the instant complaint.
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 claims of discrimination to
be raised in a negotiated grievance procedure, a person wishing to file
a complaint or 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. An aggrieved employee who files a
grievance with an agency whose bargaining 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.
Upon review, we find that the June 29, 2004 3rd Step Union Grievance
specifically names complainant and requests that she be made whole for
her financial loss during the week of June 21 - 25, 2004. The record
also contains a July 23, 2004, memorandum responding to a meeting held
on July 22, 2004, regarding complainant's light duty assignment. The
memorandum indicates that both written and oral presentations were
presented regarding complainant's case. As such, the Commission is not
persuaded that the grievance was not filed on behalf of complainant
or that complainant did not consent or know about the grievance.
Accordingly, the Commission determines that the agency properly dismissed
complainant's complaint on the grounds that complainant raised the
matter in a negotiated grievance procedure that permits allegations
of discrimination. Therefore, the agency's final decision dismissing
the instant 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
_____06-01-05_____________
Date