01A21548_r
06-20-2002
Charles R. Blue, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Charles R. Blue v. Department of the Treasury
01A21548
June 20, 2002
.
Charles R. Blue,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A21548
Agency No. 01-4326
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 9, 2001, dismissing his 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.
In his complaint, complainant alleged that he was subjected to
discrimination on the basis of race when, on or about July 19, 2001,
the agency:
1. Failed to select him for the position of Revenue Officer, GS-1169-12,
under Vacancy
Announcement (VA) SBS1K171; and
2. Failed to meet with him to discuss the details of the above
promotion action while meeting with White employees
on the same matter.
The agency dismissed the complaint on the grounds that complainant
previously raised the same issues in a negotiated grievance procedure
that permitted discrimination claims.
On appeal, complainant contends that the grievance and the complaint
address two separate issues. Specifically, complainant contends that the
grievance addresses numerous errors made by management in the ranking of
the job applicants, while the instant EEO complaint addresses complainant
not being informed of the details of the promotion action as were the
white applicants.
In response, the agency argues that the complaint was properly dismissed,
because the same matters were raised in the grievance and the EEO
complaint. The agency found the complainant's grievance concerned his
non-selection for a Revenue Officer position under VA SBS1K171 and his
not being told about it. Similarly, the found that the EEO complaint
concerned the same two actions, which the complaint claimed occurred
because of discriminatory motives on the part of agency management.
The Commission notes that EEOC Regulation 29 C.F.R. � 1614.301(a) states
in relevant part:
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 irrespective of whether ... the grievance
has raised an issue of discrimination.
The question then becomes whether the issues raised in the negotiated
grievance procedure concern the same matter as those issues raised in
the EEO complaint. The Commission finds that the matter raised in the
negotiated grievance process, which permits claims of discrimination,
raises the same matter that is addressed in the instant EEO complaint.
The matters involved in the grievance and in the EEO complaint merely
involve different aspects of the same matter, that is, the job application
process for the same position as advertised in Vacancy Announcement
SBS1K171. Inasmuch as complainant had filed his grievance before
he filed his EEO complaint, the Commission determines that the agency
properly dismissed his complaint pursuant to the above regulation.
Accordingly, the agency's final decision dismissing the 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
June 20, 2002
Date