Ann Thomas, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionSep 13, 2000
01984943 (E.E.O.C. Sep. 13, 2000)

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.