01983872_r
05-27-1999
Rita E. Hansard, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Rita E. Hansard, )
Appellant, )
) Appeal No. 01983872
v. ) Agency No. DM-98-947
)
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Logistics Agency), )
Agency. )
)
DECISION
On April 17, 1998, appellant filed an appeal from a March 17, 1998 final
agency decision dismissing one of four allegations of her complaint
on the grounds that she raised the matter in a negotiated grievance
procedure and, alternatively, for failure to contact an EEO Counselor
in a timely manner. The agency failed to provide a certified mail
return receipt or any other material capable of establishing the date
when appellant received the final agency decision. Accordingly, the
Commission presumes that appellant's appeal was filed within 30 days
of appellant's receipt of the agency's final decision. Accordingly,
the appeal is accepted as timely (see, 29 C.F.R. �1614.402(a)), in
accordance with the provisions of EEOC Order No. 960, as amended.
EEOC Regulation 29 C.F.R. �1614.107(d) provides that an agency may dismiss
a complaint, or portion thereof, where the complainant has raised the
matter in a negotiated grievance procedure that permits allegations
of discrimination.
Allegation (b) reflects that appellant received a letter of reprimand
from the agency on June 6, 1997. The record reveals that appellant
filed a grievance regarding the reprimand in June 1997. The record also
contains a copy of Article 36 of the negotiated bargaining agreement
which reflects that allegations of discrimination may be raised. The
Counselor's Report reflects that appellant initiated EEO Counselor contact
on September 9, 1997, after her grievance was denied at Step III in an
August 19, 1997 decision. The record further reveals that appellant's
complaint was filed in December 1997. The Commission therefore finds that
the agency's dismissal pursuant to 29 C.F.R. �1614.107(d) was proper.<1>
Although appellant asserts on appeal that she was unaware that she had
to elect between the negotiated grievance process and the EEO process,
the dismissal is still proper. Pursuant to 29 C.F.R. �1614.301(a), 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.
Accordingly, the agency's final decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
May 27, 1999
DATE Carlton M. Hadden, Acting Director
1Having so decided, the Commission need not address the alternative
grounds for dismissal.