01996160
07-20-2000
Beverly J. Stith, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.
Beverly J. Stith v. Defense Finance and Accounting Service
01996160
July 20, 2000
.
Beverly J. Stith,
Complainant,
v.
William S. Cohen,
Secretary,
Department of Defense,
(Defense Finance & Accounting Service),
Agency.
Appeal No. 01996160
Agency No. DFAS-Cl-000-99-016
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision pertaining to her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, 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.<1> The Commission
accepts the appeal in accordance with 64 Fed. Reg. 37,644, 37,659
(1999)(to be codified at 29 C.F.R. �1614.405).
Complainant contacted the EEO office claiming she suffered discrimination
based on race, sex, age, and reprisal when she was not selected for
Vacancy Announcement No. CL-0006-99, Paralegal Specialist, GS-950-11.
Informal efforts to resolve complainant's concerns were unsuccessful. On
June 18, 1999, complainant filed a formal complaint.
On June 25, 1999, the agency issued a decision dismissing the complaint
on the grounds that it alleged the same matter raised in the negotiated
grievance process. The agency determined that complainant indicated on
her complaint that she filed a grievance under the negotiated grievance
procedure on the same subject. Thereafter, the agency determined that
on May 20, 1999 a formal third step grievance had been filed on the same
matter.
On appeal, complainant contends that her grievance was based on
�violations of the agency contract on Merit Promotion....� She also
reiterates the merits of her case, contending she is more qualified than
the selectee.
In response, the agency provided a copy of the relevant portion of
the negotiated agreement, indicating that an employee must elect to
�raise the matter under the appropriate statutory appellate procedure
or under the provisions of this Article, but not both.� Further,
the agreement states that the employee is deemed to have elected his
or her option at the time he or she files her complaint or grievance,
whichever occurs first. The record also contains a copy of a grievance
filed by complainant on May 20, 1999.
Volume 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 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.
In the instant case, we find that the agency properly dismissed the
complaint for alleging the same matter raised in a grievance. Although
complainant argues that her grievance addresses contract violations,
her grievance statement refers to the Paralegal Specialist position.
In her grievance, complainant states that �I feel that my application was
not given proper consideration in a competitive action ....� Therefore,
we find that the grievance addresses the same matter described in the
formal complaint, namely the non-selection to the Paralegal Specialist
position. With respect to which process complainant elected, we note
that the grievance was filed on May 20, 1999, approximately one month
before the EEO complaint. Consequently, we find that complainant has
elected to pursue the grievance process.
Accordingly, the agency's dismissal of the complaint was proper and is
hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
July 20, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.