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