0120091698
07-24-2009
Sharon Butler-Norwood, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Sharon Butler-Norwood,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120091698
Agency No. 200403182008102911
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated February 12, 2009, 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.
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim.
In a complaint dated August 15, 2008, complainant alleged that she was
subjected to discrimination on the basis of reprisal for prior protected
EEO activity under Title VII of the Civil Rights Act of 1964 when (1) she
was issued a written counseling on May 1, 2008, subsequent to receiving
her response on April 30, 2008; (2) she was issued a proposed reprimand
on April 11, 1008; and (3) on April 8, 2008, a co-worker raised her
voice and used profanity and attempted to physically attack complainant.
The agency dismissed claims 1 and 2 because complainant raised them in a
negotiated grievance procedure that allows for claims of discrimination
to be raised. 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 negotiated agreement
permits the acceptance of grievances which allege discrimination may
not thereafter file a complaint on the same matter under this 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.
The Commission finds that the dismissal of claims 1 and 2 was proper.
With respect to claim 3, the record reflects that the matter involves
complainant's coffee cup. Complainant became upset when the co-worker
gave complainant's personal coffee cup to a customer to use without
her permission, and words were exchanged between complainant and the
co-worker.
The Commission finds that the complaint fails to state a claim under the
EEOC regulations because complainant failed to show that she suffered harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). Accordingly, the agency's
final decision dismissing complainant's complaint is affirmed.
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 (S0408)
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 (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
July 24, 2009
__________________
Date
2
0120091698
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120091698