Maureen C. Driscoll, Complainant,v.Norman Y. Mineta, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionNov 7, 2005
01a55007 (E.E.O.C. Nov. 7, 2005)

01a55007

11-07-2005

Maureen C. Driscoll, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.


Maureen C. Driscoll v. Department of Transportation

01A55007

November 7, 2005

.

Maureen C. Driscoll,

Complainant,

v.

Norman Y. Mineta,

Secretary,

Department of Transportation,

Agency.

Appeal No. 01A55007

Agency No. 2005-19644-RITA-01

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated June 30, 2005, dismissing her formal 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.

On February 23, 2005, complainant contacted an EEO Counselor and claimed

that she was discriminated against based on her sex in that she has

been the victim of ongoing violation of the Equal Pay Act. Informal

efforts to resolve the matter was unsuccessful and on June 1, 2005,

she filed a formal complaint.

In a final decision dated June 30, 2005, the agency determined that the

instant complaint was comprised of the following claim:

Were you subjected to disparate treatment based on your sex, when you

discovered that the language in a PD (position description) had false

and misleading information, which has led to your position continuing

to not be upgraded from a GS-12 to a GS-13, while male employees doing

similar work have had their positions classified as a GS-13?

The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(4),

on the grounds that complainant raised the matter identified in her

formal complaint, in a negotiated grievance procedure that permits claims

of discrimination to be raised.<1> The agency cited the pertinent

provision of the Collective Bargaining Agreement (Article 39, Section

2(a)) and stated that this provision is sufficiently broad so as to

permit discrimination claims to be raised in the grievance process.

The record contains a copy of a grievance filed by complainant on

April 25, 2005 (resubmitted to the agency on May 3, 2005). Therein,

complainant claimed that her position is classified based on false and

misleading information, and that this action has caused her irreparable

harm to her career.

The record contains a copy of a portion of the Collective Bargaining

Agreement between the agency and complainant's union. Article 39

(Grievance Procedures) states, in pertinent part:

Section 2. A grievance is defined as any complaint subject to the

control of the employer:

a. By any employee in the bargaining unit concerning any matter relating

to the employment of the employee.

EEOC Regulation 29 C.F.R. �1614.107 (a)(4) provides that an agency

shall dismiss a complaint where the complainant has raised the matter

in a negotiated grievance procedure that permits allegations of

discrimination .

The Commission first determines that the applicable Collective Bargaining

Agreement, referenced above, permits claims of discrimination to be

raised in the negotiated grievance process. We next determine that

complainant elected to file a grievance, and then filed the instant EEO

complaint addressing the same matter.

On appeal, complainant argues that the instant complaint can be

distinguished from the grievance she filed, because the instant EEO

complaint addresses the agency's purported violation of �the Equal Pay

Act on the basis of gender;� and that, in contrast, the grievance address

falsification of a position description which amounted to abuse of power

and government waste. We reject this argument. A review of complainant's

April 25, 2005 grievance and the instant EEO complaint indicates that the

essence of the claims in both are the same. Once an employee files a

grievance with an agency which accepts grievances alleging discrimination,

the agency may dismiss any subsequently filed EEO complaint on the

same matter, regardless of whether the grievance actually raised claims

of discrimination. See Martin v. Department of Veterans Affairs, EEOC

Request No. 01954664 (June 12, 1996); Chang v. Department of the Navy,

EEOC Request No. 05940593 (November 10, 1994).

Accordingly, the agency's decision to dismiss this claim as being the

subject of a previously filed grievance was proper and 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

November 7, 2005

__________________

Date

1In its final decision, the agency

inadvertently identifies this regulation as �29 C.F.R. � 1614.107(a)(1).�