Mary F.A. Seymour, Complainant,v.F. Whitten Peters, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionJul 6, 2000
05990495 (E.E.O.C. Jul. 6, 2000)

05990495

07-06-2000

Mary F.A. Seymour, Complainant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.


Mary F.A. Seymour v. Department of the Air Force

05990495

July 6, 2000

Mary F.A. Seymour, )

Complainant, )

) Request No. 05990495

v. ) Appeal No. 01976177

) Agency No. AL900970591

F. Whitten Peters, )

Secretary, )

Department of the Air Force, )

Agency. )

)

DENIAL OF REQUEST FOR RECONSIDERATION

On March 22, 1999, Mary F. A. Seymour (complainant) timely initiated a

request to the Equal Employment Opportunity Commission (the Commission)

to reconsider the decision in Seymour v. Dept. of the Air Force, EEOC

Appeal No. 01976177 (February 19, 1999).<1> EEOC regulations provide

that the Commissioners may, in their discretion, reconsider any previous

decision where the party demonstrates that: (1) the previous decision

involved clearly erroneous interpretation of material fact or law;

or (2) the decision will have a substantial impact on the policies,

practices or operation of the agency. 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. �1614.405(b)).

The record indicates that complainant contacted an EEO counselor

in November 1996 complaining of being harassed based on numerous

incidents such as being required to submit leave slips in advance, not

having overtime approved, and being required to bring notes from her

doctor, which led up to her subsequent removal. Complainant was given

a notice of final interview (NOFI) on April 9, 1997, which included the

appropriate time frame for filing a complaint and the information needed.

Complainant contacted the agency on April 29, 1997, seeking an extension

of time of 45 days. The agency indicated it was willing to extend

the time frame from the date complainant received the NOFI. However,

by May 23, 1997, no complaint was filed.

The agency issued a final agency (FAD) decision on May 23, 1997,

dismissing the complaint because complainant failed to file a formal

complaint. The FAD gave complainant appeal rights to the Commission,

and complainant properly filed an appeal. The previous decision upheld

the dismissal. In her request, complainant attaches a copy of arguments

she made on appeal. She also submits a copy of an arbitrator's decision

which found in her favor. However, complainant does not dispute that

she failed to file a formal complaint.

The Commission notes that in August 1997, complainant had a hearing

before an arbitrator concerning a grievance that addressed her removal

from the agency. On November 10, 1997, the arbitrator found that the

agency failed to reasonably accommodate complainant and her removal was

not for just cause. Thus, it appears that the grievance process allows

for claims of discrimination to be raised, and as such complainant

elected to use the grievance process. As such, she cannot now file a

discrimination claim on the same matter. 29 C.F.R. � 1614.301(a).

After a review of complainant's request to reconsider, the previous

decision, and the entire record, the Commission finds that complainant's

request does not meet the criteria of 29 C.F.R. �1614.405(b), and it

is the decision of the Commission to deny complainant's request. The

decision of the Commission in Appeal No. 01976177 remains the Commission's

final decision. There is no further right of administrative appeal from

a decision of the Commission on a request for reconsideration.

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission's decision. 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.

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 6, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

1 On 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.