0120064439
05-22-2008
Richard N. Schowengerdt, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Contract Management Agency), Agency.
Richard N. Schowengerdt,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Contract Management Agency),
Agency.
Appeal No. 01200644391
Agency No. YS-05-0075
DECISION
Complainant filed an appeal with this Commission from the agency's
decision dated June 28, 2006, dismissing his 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. In his
complaint, complainant alleged that he was subjected to discrimination
on the basis of reprisal for prior protected EEO activity when:
On April 25, 2005, complainant was assigned to draft two Memorandums of
Agreement (MOAs). On May 23, 2005, complainant's supervisor informed
complainant that his draft MOU submissions were unacceptable. On May
25, 2005, complainant's supervisor met with him for the purpose of
counseling him on his job performance and at the conclusion of the
meeting complainant received a "Memorandum of Counseling."
On June 28, 2006, the agency issued a decision in which the agency
dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(4) for
electing to file a grievance on the same matter. By letter dated July
11, 2006, to the Commission, the agency provided a copy of the Article
36 of the agency's DCMDE/AFGE Supplemental Agreement and DLA/AFGE
Master Agreement, showing that allegations of discrimination could be
raised in the grievance process. The regulation set forth at 29 C.F.R. �
1614.107(a)(4) provides that an agency may dismiss a complaint where the
complainant has raised the matter in a negotiated grievance procedure
that permits claims of discrimination. In the instant case, we find the
record supports the agency's final decision. We observe that complainant
previously obtained a final decision on July 18, 2005, to a grievance
he filed containing the same claim as the instant complaint.
Accordingly, we AFFIRM the agency's final decision dismissing the
complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 tends 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 (S0408)
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 (Z0408)
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
May 22, 2008
__________________
Date
1 Due to a new data system, the Commission has redesignated the instant
case with the above- referenced appeal number.
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0120064439
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4 0120064439