01A34082_r
02-19-2004
Andrea K. Zalewski, Complainant, v. John W. Snow Secretary, Department of the Treasury, Agency.
Andrea K. Zalewski v. Department of the Treasury
01A34082
February 19, 2004
.
Andrea K. Zalewski,
Complainant,
v.
John W. Snow
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A34082
Agency No. TD-03-3124
DECISION
Complainant filed a timely appeal with this Commission from a May 30,
2003 agency final decision dismissing her complaint of unlawful employment
discrimination brought pursuant to the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
Complainant contacted an EEO Counselor on March 5, 2003, and subsequently
filed a formal complaint on April 11, 2003, claiming discrimination and
harassment on the basis of age (DOB: April 30, 1951). Specifically,
complainant claimed that the agency unfairly evaluated her performance
during Revenue Agent Phase II training, and improperly refused to
advance her to Phase III of this training. Complainant also claimed
that her first and second level supervisors subjected her to a hostile
work environment during her Phase II training, berating her ability to
succeed and placing her under close observation.
In its final decision, the agency dismissed the complaint on the grounds
that the same claim had been raised by complainant in a grievance
filed on January 30, 2003. Specifically, the agency determined that
the grievance, in pertinent part, concerned complainant's claim that
she had been unfairly evaluated during her Phase II training, and that
management improperly refused to certify her successful completion of
Phase II, precluding her from advancing to Phase III. The agency further
determined that its collective bargaining agreement permitted claims of
discrimination to
be raised in the grievance procedure, or the EEO procedure, but not both.
Additionally, the agency found that complainant filed her grievance
prior to filing her formal complainant, thereby electing to pursue her
claim in the union forum.
On appeal, complainant argues that she did not raise age discrimination
in her grievance, and that the matter raised in the instant complaint
therefore is not the same as the matter raised in her grievance.
Additionally, in a brief filed by her attorney, complainant requests that
her complaint be amended to include a claim of harassment, based on race,
national origin and retaliation, apparently concerning agency actions
subsequent to the filing of her complaint, but not further specified.
Complainant argues that amending her complaint to include a new
claim precludes dismissal, because to do so would result in improper
fragmentation.
In response, the agency argues that its final decision is fully supported
by the Commission's regulations and the evidence of record. Additionally,
the agency avers that complainant cannot properly amend a complaint on
appeal, but should instead seek EEO counseling regarding this matter.
The agency requests that the Commission affirm its dismissal.
The regulation set forth at 29 C.F.R. � 1614.107(a)(4) provides that an
agency may dismiss a complaint where the complainant has raised the matter
in a negotiated grievance procedure that permits claims of discrimination.
The record confirms that complainant filed a grievance prior to
filing the instant complaint, concerning the same matter raised in
the instant complaint, i.e., improper performance evaluations of her
Phase II training, refusal to advance her to Phase III training, and
supervisory harassment. Additionally, the record shows that under the
terms of the agency's union agreement, employees have the right to raise
matters of alleged discrimination under the statutory (EEO) procedure
or the negotiated grievance procedure, but not both. Furthermore, not
withstanding complainant's arguments to the contrary, as long as the
negotiated grievance procedure permits allegations of discrimination,
a complainant need not actually raise a claim of discrimination in a
grievance in order to elect to pursue her discrimination claim concerning
the same matter in the union forum. See 29 C.F.R. � 1614.301(a).
Therefore, because the record indicates that complainant elected
to pursue the same matter raised in the instant complaint within the
grievance procedure, we find that the agency properly dismissed the
instant complaint pursuant to 29 C.F.R. � 1614.107(a)(4).
Finally, we advise complainant that a complaint cannot be amended after
an agency issues a final decision dismissing the complaint. See 29
C.F.R. � 1614.106(d). We further advise complainant that if she wishes
to pursue the harassment claim raised on appeal, she should contact an
EEO Counselor thereon.
In conclusion, for the reasons set forth above, we AFFIRM the agency
final decision dismissing the captioned complaint.
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
February 19, 2004
__________________
Date