01984943
09-13-2000
Ann Thomas, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Ann Thomas v. Department of the Army
01984943
September 13, 2000
.
Ann Thomas,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Appeal No. 01984943
Agency No. AWGHFO9608G0200
DECISION
On June 3, 1998, complainant filed a timely appeal with this Commission
from an agency decision pertaining to 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.<1> The Commission
accepts the appeal in accordance with 29 C.F.R. �1614.405.
Complainant filed a formal complaint, dated October 2, 1996, regarding
claims of discrimination based on race and sex. Specifically, complainant
claims she was discriminated against when:
Her veteran preference type was incorrectly assessed for Announcement
No. 95-02KD-PN; and,
The selected applicant was allowed to submit a transcript after the
closing date for Announcement No. 95-02KD-PN.
On October 17, 1996 the agency issued a decision dismissing the instant
complaint for having raised the same claim previously raised and on the
alternative grounds of mootness. Complainant appealed the decision
to the Commission. The agency was ordered to conduct a supplemental
investigation to obtain evidence regarding whether the claims were raised
in a prior complaint. See Thomas v. Department of the Army, EEOC Appeal
No. 01971334 (February 19, 1998).
In accordance with the Commission's order, the agency issued a new
decision on May 4, 1998, which is the subject of the instant appeal.
The agency dismissed the complaint for stating the same claim that is
pending before the agency; untimely Counselor contact; and for filing
a civil action. Specifically, the agency determined that the issues in
the instant complaint merely expanded the issues raised in her August 3,
1995 complaint. Further, the agency determined that these matters were
considered and decided by an EEOC Administrative Judge on September
24, 1997. Regarding the issue of untimely EEO Counselor contact ,
the agency concluded that the alleged events occurred more than one
year before her initial Counselor contact and that complainant failed
to provide an explanation for the delay. Finally, the agency found that
complainant appealed the AJ's findings, which were adopted by the agency,
to the U.S. District Court for the Western District of Missouri.
On appeal, complainant reiterates the merits of her claims and contends
that her EEO Counselor contact was timely.
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.
A review of the record reveals that on August 3, 1995, complainant
filed an EEO complaint concerning a �qualification determination and a
nonselection.� On September 24, 1997, an AJ issued a decision on the
August 3, 1995 complaint without a hearing, finding no discrimination.
In addition to the nonselection for a Budget and Accounting Tech
position and incorrect assignment of veteran's preference points,
the AJ addressed the nonselection for Engineer DA Intern positions.
The Investigative Report indicates that the specific intern positions
included Announcement No. 95-02KD-PN, which is the position at issue
in the instant case. The Commission determines that claim 1 has been
decided by the agency. Moreover, the record shows that the transcript
issue that is the subject of claim 2 was also raised before the AJ
during the processing of the prior complaint. Accordingly, the agency's
dismissal of the complaint for raising the same matter that has been
decided by the agency was proper and is AFFIRMED.
Because we affirm the agency's decision to dismiss the complaint for
the reason stated herein, we find it unnecessary to address the agency's
decision to dismiss the complaint on alternative grounds.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0800)
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).
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 13, 2000
__________________
Date
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.