0220110003
03-24-2011
Agency.
Holly K. Finlayson,
Grievant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0220110003
FLRA Nos. 63 FLRA No. 101 and 153
FMCS No. 060822-59017-8
DISMISSAL
Grievant filed a timely appeal with this Commission from a decision
of the Federal Labor Relations Authority (FLRA) dated May 13, 2009,
concerning her grievance alleging 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. The FLRA subsequently denied her
request for reconsideration on July 10, 2009.
BACKGROUND
At the time of events giving rise to this complaint, Grievant was
terminated from her position with the Agency. She filed a grievance
regarding the termination. The record indicated that the matter was
referred to arbitration. However, the arbitrator in the grievance
regarding the termination withdrew from the case when he learned that
the Union was not a party to the grievance. The Agency notified the
Union that because the Union and Grievant took no further action, the
Agency considered the matter abandoned by Grievant.
Subsequently, the Union filed a grievance in this case alleging that
there are unresolved issues and the Agency's finding that the previous
matter was "abandoned" was in reprisal for Grievant's prior protected
EEO activity. The grievance was denied by a new arbitrator. The Union
filed an exception alleging that the new arbitrator exceeded his authority
by dismissing the matter.
The FLRA issued a decision on May 13, 2009, dismissing the matter for
lack of jurisdiction. The Union requested reconsideration which was
denied by the FLRA on July 10, 2009. This appeal was filed while the
request for reconsideration was pending.
Grievant appealed asserting that the Commission could accept jurisdiction
on the matter at hand. The Agency argued that the Commission should
dismiss the appeal just as done by the FLRA.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.401(d) provides that a grievant
may appeal to the Commission from a final decision of the Agency,
the arbitrator, or the Federal Labor Relations Authority (FLRA) on a
grievance when an issue of employment discrimination was raised in a
negotiated grievance procedure that permits such issues to be raised.
As the decision of the FLRA was a procedural dismissal and did not address
allegations of discrimination, the Commission lacks jurisdiction over
the instant appeal.
Accordingly, the Commission dismisses Grievant's appeal.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
March 24, 2011
__________________
Date
2
0220110003
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0220110003