01a51602
03-29-2005
Ethel Verna Bell Kerr, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Ethel Verna Bell Kerr v. Social Security Administration
01A51602
03-29-05
.
Ethel Verna Bell Kerr,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A51602
Agency No. 04-0447-SSA
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated November 16, 2004, dismissing her complaint
of unlawful employment discrimination in violation of Section 501 of
the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 et seq. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. In her complaint,
complainant alleged that she was subjected to discrimination on the
bases of disability (Fibromyalgia and Bilateral Carpal Tunnel) and age
(over 40) when she was issued a written reprimand on June 15, 2004,
and a copy of the reprimand was placed in her SF 7-B Extension File.
The agency dismissed complainant's complaint on the grounds that
complainant already raised the matter under a negotiated grievance
procedure that permits claims of discrimination. Specifically, the
agency determined that the claim was the same as the issue set forth in
complainant's July 7, 2004 grievance.
On appeal, complainants asserts that the issue identified omits
�retaliation/reprisal, work conditions, harassment (non-sexual),
reasonable accommodation . . ., and disclosure contact,� issues she
allegedly described when she met with the EEO Counselor. Complainant also
provides a brief note from her physician and electronic messages (e-mail)
between management, regarding an air draft issue in the reception area
where complainant worked.
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 dismissed complainant's complaint on the grounds
that it raised the same matter that was the subject of complainant's
July 7, 2004 grievance. The record contains the agency's decision in
Grievance No. 04-300-001, dated July 27, 2004. This grievance concerned
�the Reprimand issued on June 15, 2004,� and considered whether this
action was incongruous with Title 5 U.S.C. and the Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. Complainant asserts that the EEO Counselor omitted issues in
her EEO Counselor's Report. Complainant, however, failed to provide any
information in her formal complaint,<1> and the information she provides
on appeal revolves around the incidents giving rise to the June 15,
2001 Reprimand. The Commission determines that the issue raised in
the present EEO complaint and in the negotiated grievance procedure
is the same. Therefore, we find that the agency properly dismissed
complainant's complaint, pursuant to 29 C.F.R. � 1614.107(a)(4).
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
____03-29-05______________
Date
1 The Commission advises the agency that its
Individual EEO Discrimination Complaint Form should include a field in
which a complainant may elaborate upon his/her claim(s) of discrimination,
and another field and/or box where a complainant may indicate his/her
protected basis.