0120070462
02-22-2007
Rosetta Watson, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.
Rosetta Watson,
Complainant,
v.
Henry M. Paulson, Jr.,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120070462
Agency No. EEODFS060211F
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated September 27, 2006, 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. In her
complaint, complainant alleged that she was subjected to discrimination
on the basis of reprisal1 for prior protected EEO activity under an EEO
statute that was unspecified in the record when:
1. in February 2003, complainant's government credit card was cancelled;
2. on February 28, 2005, management took work away from complainant and
gave it to an employee four grades higher;
3. on February 28, 2005, complainant's annual appraisal rating was
lowered, thus making her ineligible for an award;
4. on March 2, 2006, complainant's request for administrative leave
to work on her U.S. District Court complaint from March 6 to 8, 2006,
was denied;
5. on March 31, 2006, complainant's request for administrative leave to
work on her civil action from April 6 to 7, 2006, was denied;
6. on April 14, 2006, complainant's request for 8 hours of administrative
leave to work on her civil action on April 21, 2006, was denied;
7. on May 2, 2006, complainant's request for administrative leave to
work on her civil action on May 3, 2006, was denied; and
8. on May 12, 2006, complainant's request for administrative leave to
appear in court to submit a case management plan on her civil action on
May 12,2006, was denied.
The agency dismissed claims 1, 2, and 3 for untimely EEO Counselor
contact, and claims 4 through 8 on the grounds that these claims had been
raised in a negotiated grievance procedure. On appeal, complainant
states that she merely intended to raise the issues addressed in
claims 1 through 3 as background material only, not as distinct claims.
As regards the remaining claims, complainant contends that union officials
never notified her that she could not file both a grievance and an EEO
complaint on the same issue, and that had they done so, she would have
selected the EEO process instead of the grievance process.
As regards claims 1 through 3, the record shows that complainant first
sought EEO counseling on June 6, 2006, which is beyond the forty-five
(45) day limitation period. On appeal, complainant has presented no
persuasive arguments or evidence warranting an extension of the time
limit for initiating EEO Counselor contact. Furthermore, complainant
explains that these claims were presented as background material only.
Accordingly, we find the agency properly dismissed claims 1 through 3
pursuant to 29 C.F.R. � 1614.107(a)(2) and 105(1).
As regards claims 4 through 8, the regulation set forth at 29 C.F.R. �
1614.107(a)(4) provides that an agency may dismiss a complaint where the
complainant has raised the matter in a negotiated grievance procedure
that permits claims of discrimination. In the instant case, the record
shows that complainant filed grievances concerning the matters identified
in claims 4 through 8. Additionally, the record shows that under the
terms of the agency's union agreement, employees have the right to raise
matters of alleged discrimination under the statutory procedure or the
negotiated grievance procedure, but not both. As the record indicates
that complainant elected to pursue these matters within the grievance
procedure, we find that the agency properly dismissed claims 4 through
8 pursuant to 29 C.F.R. � 1614.107(a)(4).
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
February 22, 2007
__________________
Date
1 The agency's Final Agency Decision (FAD) also included race as a
claimed basis of discrimination. A review of the record, however,
reveals that complainant only claimed reprisal.
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0120070462
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120070462