01A14694_r
06-27-2002
Vera LaVerne Charity, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency) Agency.
Vera LaVerne Charity v. Department of Defense
01A14694
June 27, 2002
.
Vera LaVerne Charity,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Logistics Agency)
Agency.
Appeal No. 01A14694
Agency No. GA-00-004
Hearing No. 120-A0-3633X
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final action dated July 31, 2000, implementing the decision of an
Administrative Judge (AJ), which dismissed 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.
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal
in accordance with 29 C.F.R. � 1614.405.
The record reveals that complainant, a GS-343-5T9 Management Analyst (MA)
at the agency's Defense Supply Center (DSCR) in Richmond, Virginia, filed
a formal EEO complaint on November 1, 1999. Therein, complainant alleged
that she was discriminated against on the bases of race and sex when in
March 1999 and on June 6, 1999, her Director assessed her job performance
as �minimally acceptable� and thereby denied her a promotion to Management
Analyst GS-7. Complainant also alleged that her first-line supervisor
provided only minimal training during her first year as a trainee and
that a Caucasian male MA trainee had been promoted to his target grade
of GS-9 although his performance was also deemed minimally acceptable.
The record indicates that after completion of the investigation of the
complaint, complainant requested a hearing before an AJ.
On September 19, 2000, the agency filed a Motion to Dismiss with the AJ
upon discovering that the issues raised in this complaint were identical
to those that had been raised in the negotiated grievance process.
After complainant failed to respond to the agency's motion, the AJ granted
the agency's motion to dismiss and issued his decision dismissing the
complaint on the procedural grounds of election of grievance remedy.
The AJ determined that complainant raised the same matter of her
nonselection in the instant complaint as she brought in her grievance.
Further, the AJ stated although complainant refers to different obstacles
to her promotion in her grievance and her EEO complaint, he determined
that the central issue is her failure to be promoted. Therefore, the AJ
concluded that an election had taken place and dismissed complainant's
complaint.
The agency took final action on June 21, 2001, adopting the AJ's Order
of Dismissal.<1>
An agency is authorized to dismiss an entire complaint where the
complainant has raised the matter in a negotiated grievance procedure
that permits allegations of discrimination. 29 C.F.R. � 1614.107(a)(4).
The record reveals that the same matters were first raised within
the negotiated grievance process, then later within the EEO process.
The record further reveals that under the terms of the agency's
union agreement, employees have the right to raise matters of alleged
discrimination under the statutory procedure or the negotiated grievance
procedure, but not both. By letter dated April 1, 1999, complainant,
through the union, filed a grievance and requested a meeting without
specifying any issues. By letter dated April 19, 1999, complainant's
supervisor denied complainant's Step I grievance and asked that
complainant complete her performance period before holding a meeting.
The supervisor also stated that complainant's work would be closely
monitored and that she would give complainant additional training.
By letter April 29, 1999, the union filed a Step II grievance and outlined
the issues in the grievance as deferral of complainant's performance
appraisal without just case, and a claim that �as a result of the deferred
performance appraisal the employee's promotion to the GS-7 level is also
being deferred.� In addition, the union sought a �performance appraisal
for the rating period of January 1-December 31, 1998, and consideration
of the employee for promotion to the GS-7 level.� In her response letter
to the union's Step II grievance, an agency Director determined that
complainant's performance was not fully successful at the GS-5 level;
and that therefore, she cannot be promoted to the GS-7 level.
By letter dated May 28, 1999, the union filed a Step III grievance
concerning the deferral of complainant's performance appraisal and
that promotion to the GS-7 level had also been improperly deferred.
The record indicates that complainant proceeded through the negotiated
grievance process to Step III but withdrew her grievance on July 30, 1999
and filed an EEO complaint on November 1, 1999. The record indicates that
complainant elected to pursue the matter within the grievance procedure
before filing an EEO complaint. Accordingly, the agency's decision to
fully implement the AJ's dismissal decision was proper and 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
June 27, 2002
__________________
Date
1In its final action, the agency stated that
the AJ dismissed the complaint for failure to prosecute, when in fact
the AJ's dismissal was based upon complainant's pursuit of the matter
raised in the instant complaint in a previously filed grievance.