Susan Johnson, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionSep 18, 2009
0120091946 (E.E.O.C. Sep. 18, 2009)

0120091946

09-18-2009

Susan Johnson, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.


Susan Johnson,

Complainant,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 0120091946

Agency No. 200J05552009100904

DECISION

Complainant filed a timely appeal with this Commission from the

agency's decision dated March 2, 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. and the Age Discrimination in Employment Act of 1967 (ADEA),

as amended, 29 U.S.C. � 621 et seq. Upon review, the Commission finds

that complainant's complaint was improperly dismissed pursuant to 29

C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact and for

filing a grievance on the same matter.

In her complaint, complainant alleged that she was subjected

to discrimination on the bases of race (not identified), religion

(non-Christian), age (40), and reprisal for prior protected EEO activity

when she was terminated during her probationary period on August 8,

2008; on August 8, 2008 she was granted annual leave, but that was

changed to absence without leave; her manager informed the staff that

she was terminated during her probationary period; and she was denied

an explanation of her rights or recourse during her termination;.

The agency dismissed the matter for untimely EEO counselor contact and

because complainant filed a grievance on the matter.

The record discloses that the alleged discriminatory events occurred on

August 8, 2008, but complainant did not initiate contact with an EEO

Counselor until December 2, 2008, which is beyond the forty-five (45)

day limitation period. However, complainant filed an appeal with the

Merits Systems Protection Board (MSPB) on September 9, 2008, according

to an initial decision issued by the MSPB on October 17, 2008. In that

decision, the MSPB dismissed the matter for lack of jurisdiction because

complainant was a probationary employee.

When the MSPB has denied jurisdiction in such matters, the Commission

has held that there is little point in continuing to view the matter

as a "mixed case" as defined by 29 C.F.R. � 1614.302(a). Thus, the

case will be considered a "non-mixed" matter and processed accordingly.

See generally Schmitt v. Dept. of Transportation, EEOC Appeal No. 01902126

(July 9, 1990); Phillips v. Dept. of the Army, EEOC Request No. 05900883

(October 12, 2990); 29 C.F.R. � 1614.302(c)(2)(i) and (ii). By operation

of 29 C.F.R. � 1614.302(b), the agency is required to process the

allegations of discrimination pursuant to 29 C.F.R. � 1614.105 et seq.

The date on which the complainant filed the appeal with the MSPB-September

9, 2008-shall be deemed the date of initial contact with the EEO

counselor. As such, complainant's EEO counselor contact was timely.

As to the agency's dismissal for filing a grievance, 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.

Here the agency's grievance procedure allows for probationary employees to

file grievances and raise discrimination claims. However, in the instant

case, it was discovered that the person representing complainant was

not a member of the union and was not authorized to represent the union

or bargain for the union. Under Section 5 of the negotiated agreement,

the only representation an employee may have is a union representative

approved in writing by the union. When the representative attempted to

seek arbitration, the union quickly informed the agency that complainant's

representative was not representing the union and was not authorized to

act in any manner for the union. As a result, by letter dated September

4, 2008, the agency declined complainant's arbitration request because

neither she nor her representative had standing under the collective

bargaining agreement to pursue the matter. Given these circumstances,

it appears that there was not a valid grievance filed on complainant's

behalf by the union or a person representing the union. Thus, in the

interests of justice, because complainant's discrimination claims cannot

be resolved through the grievance process, the agency's dismissal for

this reason is reversed.

The agency's decision is reversed and the matter is remanded for further

processing as set forth below.

ORDER (E0408)

The agency is ordered to process the remanded complaint 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 (K1208)

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 77960, Washington,

DC 20013. 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

September 18, 2009

__________________

Date

2

0120091946

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

5

0120091946