01A31953_r
08-22-2003
James Richardson, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
James Richardson v. Department of Defense (Defense Commissary Agency)
01A31953
August 22, 2003
.
James Richardson,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Commissary Agency),
Agency.
Appeal No. 01A31953
Agency No. 02DCMMGB001
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 28, 2003, dismissing his complaint of unlawful
employment discrimination for stating a claim identical to a claim set
forth in a previously filed grievance.<1> In complaint filed on October
9, 2001, complainant alleged that he was subjected to discrimination
on the bases of race (African-American) and reprisal for prior EEO
activity when:
Complainant had been constantly watched since September 11, 2001.
Complainant had been verbally abused by the grocery department manager
since September 11, 2001.
Complainant had been denied opportunities for work on the third shift
and overtime since September 11, 2001.
Complainant was subjected to theft charges on July 24, 1997.
Complainant received threatening comments from the grocery department
manager on August 25, 1997.
Complainant's schedule had been constantly changed since September 11,
2001, in order that the store director could monitor him.
Complainant had been denied advancement opportunity since September
11, 2001.
Complainant had been harassed by the grocery manager since September
11, 2001.
After reviewing the record, the Commission finds that the matters raised
in complainant's EEO complaint dated October 9, 2001, are identical to
those raised in the negotiated grievance proceeding dated September 12,
2001. The record clearly establishes that complainant made his election
to file a grievance on his claim, and cannot thereafter file an EEO
complaint on the same matter. The collective bargaining agreement permits
allegations of discrimination to be raised. The Commission finds that the
complaint is properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(4).
Accordingly, the agency's dismissal of the complaint is AFFIRMED.
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
August 22, 2003
__________________
Date
1Although the agency relied upon 29 C.F.R. �
1614.107(a)(1) in dismissing complainant's complaint, the Commission
finds that 29 C.F.R. � 1614.107(a)(4) is more appropriate, since it
deals directly with allegations of discrimination raised in a negotiated
grievance procedure.