01a53160
07-15-2005
Annie R. Johnson, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Finance and Accounting Service), Agency.
Annie R. Johnson v. Department of Defense
01A53160
July 15, 2005
.
Annie R. Johnson,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Finance and Accounting Service),
Agency.
Appeal No. 01A53160
Agency No. DFAS-IN-MC-04-041
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision, dated March 25, 2005, regarding her formal EEO 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal
in accordance with 29 C.F.R. � 1614.405.
Complainant contacted the EEO office regarding claims of discrimination
based on race, age and reprisal. Informal efforts to resolve
complainant's concerns were unsuccessful. On January 27, 2004,
complainant filed the instant formal EEO complaint.
In a final decision, dated April 7, 2004, the agency determined that the
instant EEO complaint was comprised in pertinent part of the following
claim:
[complainant] was not selected for the position of Payroll Technician
Supervisor (date unspecified).
The agency dismissed the complaint on the grounds that it stated the
same claim that is pending before or has been decided by the agency or
Commission. Specifically, the agency stated that on December 29, 2003,
complainant filed a formal complaint (Agency Case No. DFAS-IN-MC-04-026),
which set forth the same non-selection as that raised in the instant
complaint. The agency further asserted that it dismissed Agency Case
No. DFAS-IN-MC-04-026, and that complainant filed an appeal from this
dismissal.<1>
Complainant filed an appeal from the final agency decision dated April
7, 2004. On appeal, the Commission found that the non-selection claim
was improperly dismissed. The Commission determined that the position
at issue had a different vacancy announcement number and position title
from the position identified in Agency Case No. DFAS-IN-MC-04-026.
The Commission noted that Agency Case No. DFAS-IN-MC-04-026 concerned
Vacancy Announcement No. CH-0004-03, GS-0501-9/11, regarding a
�Supervisory Civilian Pay Specialist;� however, the EEO Counselor's
Report made reference to Vacancy Number CH-004-003, for the position
of �Payroll Technician Supervisor.� The Commission reversed the final
agency decision's dismissal of the non-selection claim, and remanded this
matter to the agency or further processing.<2> Johnson v. Department
of Defense, EEOC Appeal No. 01A43743 (February 3, 2005).
Thereafter, the agency issued another final decision dated March 25,
2005, which is the subject of the instant appeal. The agency again
dismissed the instant complaint on the ground that it states the same
claim that has been decided by the Commission. The agency noted that
in its decision of February 3, 2005, the Commission made reference
to Vacancy Announcement No. CH-004-003. However, according to the
agency, the Human Resources Office indicated that no announcement was
ever issued under Vacancy Announcement No. CH-004-003. Consequently,
the agency concluded that the non-selection cited by complainant was
the non-selection raised in Agency No. DFAS-IN-MC-04-026.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that is
pending before or has been decided by the agency or Commission.
Based on a review of the record, the Commission determines that the
instant complaint concerns the same non-selection that was raised
by complainant in a prior complaint, Agency No. DFAS-IN-MC-04-026.
In an affidavit, attached to a December 29, 2003 letter to the agency,
complainant stated that on or about July 15, 2003, she �made an
application for promotion to Payroll Technician Supervisor.� A copy
of the job posting for Vacancy Announcement CH-0004-03, regarding a
Supervisory Pay Specialist� GS-0501-9/11 position, states that the
application period opens on July 10, 2003, and that it closes on July
18, 2003.
Moreover, in the EEO Counselor's Report for the instant EEO complaint,
the EEO Counselor addressed an interview with an EEO Manager in Cleveland,
Ohio, and noted that they discussed an informal complaint from September
10, 2003. The EEO Manager stated that complainant claimed that she was
not selected for promotion regarding Vacancy Announcement �CH-004-03.�
The EEO Counselor for the instant complaint stated that because �this is
the same claim that [another agency EEO official] did the fact-finding
on . . . I did not repeat the fact finding of the same claim.� Given
these fact, along with the supplemental documentation from the Human
Resources Office that the vacancy announcement number identified by
complainant did not exist, the Commission determines that the subject
position identified in the instant complaint addresses the same position
identified in the prior complaint.
The agency's decision dismissing the instant complaint was proper and
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
July 15, 2005
__________________
Date
1 The Commission affirmed the agency's dismissal of Agency Case No.
DFAS-IN-MC-04-026. Johnson v. Department of Defense, EEOC Appeal
No. 01A42563 (July 20, 2004).
2The Commission affirmed the agency's dismissal of three other claims.
These three claims are not at issue in the instant appeal.