Beverly J. Stith, Complainant,v.William S. Cohen, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.

Equal Employment Opportunity CommissionJul 20, 2000
01996160 (E.E.O.C. Jul. 20, 2000)

01996160

07-20-2000

Beverly J. Stith, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.


Beverly J. Stith v. Defense Finance and Accounting Service

01996160

July 20, 2000

.

Beverly J. Stith,

Complainant,

v.

William S. Cohen,

Secretary,

Department of Defense,

(Defense Finance & Accounting Service),

Agency.

Appeal No. 01996160

Agency No. DFAS-Cl-000-99-016

DECISION

Complainant filed a timely appeal with this Commission from an agency's

decision pertaining to her complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq. and the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1> The Commission

accepts the appeal in accordance with 64 Fed. Reg. 37,644, 37,659

(1999)(to be codified at 29 C.F.R. �1614.405).

Complainant contacted the EEO office claiming she suffered discrimination

based on race, sex, age, and reprisal when she was not selected for

Vacancy Announcement No. CL-0006-99, Paralegal Specialist, GS-950-11.

Informal efforts to resolve complainant's concerns were unsuccessful. On

June 18, 1999, complainant filed a formal complaint.

On June 25, 1999, the agency issued a decision dismissing the complaint

on the grounds that it alleged the same matter raised in the negotiated

grievance process. The agency determined that complainant indicated on

her complaint that she filed a grievance under the negotiated grievance

procedure on the same subject. Thereafter, the agency determined that

on May 20, 1999 a formal third step grievance had been filed on the same

matter.

On appeal, complainant contends that her grievance was based on

�violations of the agency contract on Merit Promotion....� She also

reiterates the merits of her case, contending she is more qualified than

the selectee.

In response, the agency provided a copy of the relevant portion of

the negotiated agreement, indicating that an employee must elect to

�raise the matter under the appropriate statutory appellate procedure

or under the provisions of this Article, but not both.� Further,

the agreement states that the employee is deemed to have elected his

or her option at the time he or she files her complaint or grievance,

whichever occurs first. The record also contains a copy of a grievance

filed by complainant on May 20, 1999.

Volume 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as EEOC Regulation 29 C.F.R. � 1614.301(a)) states that

when a person is employed by an agency subject to 5 U.S.C. � 7121(d)

and is covered by a collective bargaining agreement that permits claims

of discrimination to be raised in a negotiated grievance procedure, a

person wishing to file a complaint or grievance on a matter of alleged

employment discrimination must elect to raise the matter under either part

1614 or the negotiated grievance procedure, but not both. An aggrieved

employee who files a grievance with an agency whose negotiated agreement

permits the acceptance of grievances which allege discrimination may

not thereafter file a complaint on the same matter under this part 1614

irrespective of whether the agency has informed the individual of the need

to elect or whether the grievance has raised an issue of discrimination.

In the instant case, we find that the agency properly dismissed the

complaint for alleging the same matter raised in a grievance. Although

complainant argues that her grievance addresses contract violations,

her grievance statement refers to the Paralegal Specialist position.

In her grievance, complainant states that �I feel that my application was

not given proper consideration in a competitive action ....� Therefore,

we find that the grievance addresses the same matter described in the

formal complaint, namely the non-selection to the Paralegal Specialist

position. With respect to which process complainant elected, we note

that the grievance was filed on May 20, 1999, approximately one month

before the EEO complaint. Consequently, we find that complainant has

elected to pursue the grievance process.

Accordingly, the agency's dismissal of the complaint was proper and is

hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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:

July 20, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.