01A24727_r
12-30-2002
Ruby G. Garnett, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Ruby G. Garnett v. Department of the Army
01A24727
December 30, 2002
.
Ruby G. Garnett,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A24727
Agency No. ARCENORF02JUN0003
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated July 24, 2002, dismissing her 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 her complaint, complainant alleged that she was the victim of unlawful
employment discrimination on the bases of sex and in reprisal for
prior EEO activity when she applied for two Civil Engineer positions,
GS-0810-11 and 12, Announcement. Nos. FW02080650 and FW02080635 and was
rated ineligible because of her education.
The agency dismissed the complaint on the grounds that it raised the same
matter that was raised in a negotiated grievance procedure that permits
allegations of discrimination, pursuant to 29 C.F.R. � 1614.107(a)(4).
On appeal, complainant through her attorney, argues that she did not
raise identical matters in the instant EEO complaint as in her grievance.
In response, the agency argues that the matter raised in the instant
complaint is the same claim that had previously been raised by
complainant in her EEO complaint dated August 21, 2001. Specifically,
the agency determined that complainant raised the issue of being denied
the opportunity to compete for Civil Engineer positions while male
employees with similar backgrounds are given the opportunity to apply
and subsequently hired as Civil Engineers. In support of this argument,
the agency submits a copy of the complaint dated August 21, 2001.
Upon our review of the record, we determine that the matter raised
in complainant's August 21, 2001 EEO complaint to be the same as the
instant claim. The Commission determines that the matters raised in
the instant complaint are an elaboration of those matters set forth in
the August 21, 2001 complaint. Therefore, the dismissal of the instant
complaint is AFFIRMED.
Because we affirm the dismissal for the reason stated herein, we find it
unnecessary to address the agency's determination that the matter raised
in the instant complaint was previously raised in a grievance process.
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
December 30, 2002
__________________
Date