0120070786
02-22-2007
Tonya M. Collins, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.
Tonya M. Collins,
Complainant,
v.
Henry M. Paulson, Jr.,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120070786
Agency No. EEODFS060387F
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated October 23, 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. Upon review, the Commission finds that complainant's complaint
was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(4). In a
complaint dated September 7, 2006, complainant alleged that she was
subjected to discrimination on the bases of race (African-American)
and reprisal for prior protected EEO activity under Title VII of the
Civil Rights Act of 1964 when she was suspended for three days.
The agency dismissed the complaint because complainant filed a grievance
regarding the same matter. 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 record contains information that the grievance system allowed for
claims of discrimination to be raised.
In her appeal, complainant argues that she filed a grievance regarding
the agency's failure to give her seven days notice before any suspensions
can take place, not the suspension itself. However, an examination of
the grievance dated June 22, 2006 states "this grievance is in regards
to the three day suspension...." The grievance also stated that as
relief, it requested that "the disciplinary action be reduced to a written
reprimand and/or any other relief or remedy that may be appropriate."
Thus, it is clear that the grievance concerned the suspension. Although
complainant later withdrew her grievance, that does not negate her choice
of forums regarding this matter. Accordingly, the agency's final decision
dismissing complainant's complaint 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
February 22, 2007
__________________
Date
2
0120070786
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120070786