Andrea K. Zalewski, Complainant,v.John W. Snow Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionFeb 19, 2004
01A34082_r (E.E.O.C. Feb. 19, 2004)

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