01974735
12-06-1999
Wendy L. Boston, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Wendy L. Boston v. Department of the Treasury
01974735
December 6, 1999
Wendy L. Boston, )
Complainant, )
)
v. ) Appeal No. 01974735
) Agency No. 97-1182
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
)
DECISION
On May 27, 1997, the complainant initiated an appeal from a final decision
of the agency dated April 29, 1997 concerning her complaint of unlawful
employment discrimination in violation of the Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.<1> The appeal
is timely (see 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified as 29
C.F.R. �1614.402(a)), and is accepted under 64 Fed. Reg. 37,644, 37,659
(1999) (to be codified as 29 C.F.R. �1614.401(a)).
ISSUES PRESENTED
Whether the agency properly dismissed the complainant's complaint because
she previously elected to file a grievance on the same matter.
BACKGROUND
On November 1, 1996, the agency proposed removing the complainant
for absences without approved leave (AWOL), making false statements
in matters of official interest, and failure to follow instructions.
It sustained the proposal on February 26, 1997.
By letter dated March 19, 1997, the union contested the removal on the
complainant's behalf by invoking arbitration. It alleged race, sex,
and disability discrimination, citing Article 41, �2 of the a collective
bargaining agreement (CBA). This provision of the CBA permits allegations
of discrimination to be raised in the grievance process.
On April 1, 1997, the complainant filed a formal complaint of
discrimination alleging she was discriminated against on the bases of race
(black) and reprisal (EEO activity) when she was removed.
ANALYSIS AND FINDINGS
An agency shall dismiss a complaint or portion of a complaint where
the complainant has elected to raise the matter in a negotiated
grievance procedure that permits allegations of discrimination. See 64
Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.107(a)(4)).
EEOC Regulation 29 C.F.R. �1614.301 provides that where 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 allegations of discrimination
to be raised in the negotiated grievance procedure, an election must be
made to proceed under either the negotiated grievance procedure or the
EEO complaint procedure (part 1614). The regulation provides that the
election is indicated by the filing of a written complaint or timely
grievance, whichever is done first. It also provides that 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 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.
As a former employee of the Department of the Treasury, the complainant
was employed by an agency subject to 5 U.S.C. 7121(d). Also, the
complainant was covered by a collective bargaining agreement that
permitted allegations of discrimination to be raised in the negotiated
grievance procedure.
On appeal, the complainant argues that she did not authorize the union
to file a grievance on her behalf. She concedes that she met with the
union regarding her removal. She avers that the union advised her of her
right to elect between the grievance and the EEO complaint procedure,
and she did not give a "direct answer." The complainant explains that
she was dissatisfied with the way the union handled her past grievances.
She submits a photocopy of an April 9, 1997 letter to her by the
Assistant Counsel for the union. The Assistant Counsel wrote that he
wished to clarify the union's role as the complainant's representative
in her removal appeal. The letter stated that it was important that the
complainant realize and agree that as the exclusive representative in
arbitration proceedings, the union retained sole discretion and control
of the appeal. It asked her to sign an agreement to this effect, which
also contained other related provisions. The complainant indicates she
did not sign this agreement.
The complainant averred that on February 24, 1997, the union relayed a
message from the agency that the complainant would be removed effective
February 28, 1997 unless she resigned and dropped all her charges against
the agency. On February 24, 1997, the complainant wrote a letter
to the National President and Assistant Counsel of the union stating
that the agency decided to terminate her effective February 28, 1997.
She complained about the adequacy of the representation she received from
the union, and asked the National President to personally review her case.
The February 26, 1998 letter of removal was effective February 28, 1997.
The complainant contends that she was not represented by the union on
her removal and did not authorize it to file a grievance on her behalf.
She argues, in effect, that she did not elect the grievance forum.
We disagree. The complainant's February 24, 1997 letter to the union
indicated she wanted the union to represent her on the removal matter,
albeit at a higher level of quality. Further, the union's letter to the
complainant dated April 9, 1997 states that it was representing her on
the removal matter. The complainant submits no statements from union
officials supporting her contention that the union acted unilaterally.
The complainant's refusal to sign an agreement with the union clarifying
the terms of its representation after the grievance was filed does not
show that the union acted unilaterally. The complainant's contentions
are not supported by a preponderance of the evidence.
The agency properly dismissed the complainant's complaint pursuant to
29 C.F.R. �1614.107(a) (4).
CONCLUSION
Based upon a review of the record, and for the foregoing reasons, it
is the decision of the Commission to AFFIRM the final decision of the
agency which dismissed the complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
Dec. 6. 1999
_________________________ ____________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________ __________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.