0120090361
02-10-2009
Laverne Myles-Bryant, Complainant, v. Steve Preston, Secretary, Department of Housing and Urban Development, Agency.
Laverne Myles-Bryant,
Complainant,
v.
Steve Preston,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 0120090361
Agency No. HUD001072008
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dismissing 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.
At the time of the events at issue, complainant was employed by the
agency as an Equal Opportunity Specialist, GS-13, in the Office of
Fair Housing and Equal Opportunity in Portland, Oregon. Following EEO
counseling, complainant filed a formal EEO complaint on July 5, 2008,
alleging discrimination on the basis of race (African American).
In its final decision dated September 30, 2008, the agency determined
that the instant complaint was comprised of the following claim:
On May 14, 2008, you were notified that you were denied your request for
a reassignment transfer from the Portland Office to the Seattle Office.
Furthermore, your prior request for a transfer in November 2007 or a
hardship transfer in March 2008 to the Seattle Office were also denied.
The agency dismissed the complaint on the grounds that complainant had
raised the same matter in a union grievance prior to filing the EEO
complaint. Specifically, the agency determined that on June 6, 2008,
complainant elected to file a union grievance regarding the denial
of hardship transfer in a grievance process that permits claims of
discrimination to be raised.
An agency subject to 5 U.S.C. � 7121(d) may dismiss an EEO complaint
where the matter was first raised in a negotiated grievance procedure
that permit claims of discrimination to be raised. See 29 C.F.R. �
1614.107(a)(4). The collective bargaining agreement must allow employees
to raise matters of alleged discrimination under the 29 C.F.R. Part 1614
EEO process or under the negotiated grievance procedure, but not both.
An election to proceed under a negotiated grievance procedure is made
by the filing of a written grievance irrespective of whether the
agency has informed the individual of the need to elect or whether
the grievance has actually raised an issue of discrimination. See 29
C.F.R. � 1614.301(a). Complainants elect the EEO process by filing a
formal EEO complaint prior to filing a timely written grievance. See
id. EEO counseling, intended to define the claims and promote informal
resolution prior to the formal complaint, does not constitute election
of the EEO process.
The record contains a copy of the June 6, 2008 grievance identified by the
agency in its final decision, which was filed prior to complainant's July
5, 2008 EEO complaint. However, the record does not contain a copy of a
collective bargaining agreement or any other documentation that reflects
that the negotiated grievance procedure permits claims of discrimination.
Clearly, it is the burden of the agency to provide the evidence or proof
to substantiate its final decision. See Marshall v. Department of the
Navy, EEOC Request No.05910685 (September 6, 1991). Therefore, the
agency has failed to support its dismissal of complainant's complaint.
Accordingly, the agency's final decision dismissing complainant's
complaint is REVERSED and the complaint is REMANDED to the agency for
further processing in accordance with the ORDER below.
ORDER (E0408)
The agency is ordered to process the remanded claims in accordance with 29
C.F.R. � 1614.108 et seq. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 19848,
Washington, D.C. 20036. 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 (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 (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. 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
February 10, 2009
__________________
Date
2
0120090361
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013