Julie Ann Peterson, Complainant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionAug 16, 2000
01A02386 (E.E.O.C. Aug. 16, 2000)

01A02386

08-16-2000

Julie Ann Peterson, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.


Julie Ann Peterson v. Department of Transportation

01A02386

August 16, 2000

.

Julie Ann Peterson,

Complainant,

v.

Rodney E. Slater,

Secretary,

Department of Transportation,

Agency.

Appeal No. 01A02386

Agency No. DOT-6-00-6015

DECISION

Complainant filed a timely appeal with this Commission from an agency

decision dated January 28, 2000, dismissing 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 Commission

accepts the appeal in accordance with 64 Fed. Reg. 37,644, 37,659

(1999)(to be codified at 29 C.F.R. �1614.405).

The record reflects that on November 2, 1999, complainant filed a

grievance claiming that she was improperly decertified and was �required

to undergo. . . [a] remedial training/skills check.� Complainant's

requested corrective action consisted, in part, of removal of skills

training.

In her November 10, 1999 EEO complaint, complainant alleged that she

was the victim of unlawful employment discrimination on the basis of

sex when she received harsher punishment than a similarly situated male

employee, after she was decertified and subjected to retraining following

an operational error which occurred on September 20, 1999.

The agency dismissed complainant's claim pursuant to 64 Fed. Reg. 37,644,

37,656 (1999)(to be codified and hereinafter cited as 29 C.F.R. �

1614.107(a)(4)), for raising the matter that was previously raised in

a negotiated grievance procedure that permits claims of discrimination.

On appeal, complainant argues that the matter raised in the grievance

addressed decertification; and that the matter addressed in the instant

complaint addresses the extra training to which she was subjected due

to the decertification.

The regulation set forth at 64 Fed. Reg. 37,644, 37,658 (1999)(to be

codified and hereinafter cited as 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.

Complainant filed a step 1 grievance on November 2, 1999, concerning

the discipline she received as a result of the operational error which

occurred on September 20, 1999. The record shows that complainant is

covered by a collective bargaining agreement which allows issues of

discrimination to be raised pursuant to the negotiated procedure. We are

not persuaded by complainant's assertions on appeal that the subject

of her November 10, 1999 EEO complaint is different in nature and

scope from her November 2, 1999 negotiated grievance. We determine

that complainant's EEO complaint covered the same issue addressed when

complainant chose to pursue her claim through the agency's negotiated

grievance procedure. Accordingly, the agency's decision to dismiss

complainant's complaint was proper and is AFFIRMED for the reasons set

forth herein.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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

August 16, 2000

Date

______________

Date

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.