01A21486_r
04-26-2002
Gale Hall, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Gale Hall v. Department of the Treasury
01A21486
April 26, 2002
.
Gale Hall,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A21486
Agency No. 02-4035
DECISION
Based on a review of the record, we find that the agency properly
dismissed complainant's complaint, pursuant to the regulation set forth
at 29 C.F.R. � 1614.107(a)(4), for raising the same matter in an EEO
complaint that was previously raised in a negotiated grievance procedure.
In a formal EEO complaint dated November 7, 2001, complainant alleged
that he was subjected to discrimination on the basis of religion (Church
of Jesus Christ of Latter-day Saints) when the agency: (1) failed to
provide complainant software to produce websites requested by his
manager; (2) denied complainant promotional opportunities, resulting
from management's failure to transition him along with other employees
in the same classification and assignment; (3) assigned complainant to
numerous details during the past three years without his knowledge; (4)
assigned complainant to produce websites for the Compliance Directorate,
which is a higher-graded duty; and (5) suspended complainant for five
calendar days, commencing on August 13, 2001.
In a December 11, 2001 letter to the EEO Specialist (Person A),
complainant stated that the sole issue of his complaint was issue (5),
regarding the suspension commencing on August 13, 2001. The record
reveals that on August 10, 2001, complainant filed a grievance
(01-Comp-014) alleging that �the penalty proposed and sustained
is beyond the limits of reasonableness� and requesting �reversal of
the 5-day suspension.� The record contains a copy of the collective
bargaining agreement which permits claims of discrimination to be raised
in the agency's negotiated grievance procedure. Thus, we find that
as complainant elected to raise the issue of the August 2001 five-day
suspension in the negotiated grievance procedure (irrespective of whether
the grievance alleged discrimination), he is now precluded from raising
the same matter in the EEO process. Accordingly, the agency's decision
to dismiss complainant's 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
April 26, 2002
__________________
Date