01991220_r
11-03-1999
Harry V. Ferzetti, Appellant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Harry V. Ferzetti, )
Appellant, )
)
v. ) Appeal No. 01991220
) Agency No. TD 94-1210
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
______________________________)
DECISION
Appellant sought EEO counseling on July 7, 1994, and subsequently filed
a formal complaint of discrimination on August 18, 1994. In his formal
complaint, appellant alleged that he was subjected to discrimination on
the bases of national origin (Italian), religion (Catholic), age (date
of birth January 19, 1945), and in reprisal for prior EEO activity in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq. when:
During a period from June 10, 1993, through September 10, 1993, appellant
was denied the use of annual leave;
On October 6, 1993, appellant received a minimally successful evaluation;
Appellant was forced to lose thirty-nine (39) hours of annual leave
for the leave year 1993;
From January 3, 1994, through January 7, 1994, appellant was forced to
use annual leave;
During a period from May 4, 1994, through June 24, 1994, appellant was
denied the use of annual leave;
On May 4, 6, and 13, 1994, and on June 10 and 24, 1994, appellant was
placed on Away-Without-Official-Leave AWOL (Absence Without Leave); and
On June 27, 1994, appellant was reassigned from his position as
Examination Automation Program Manager, GM-340-13.
In a notice of processing dated December 19, 1994, the agency accepted
appellant's allegations. After the allegations were investigated,
appellant requested a hearing with an EEOC Administrative Judge (AJ)
on July 21, 1997. On May 4, 1998, the agency filed a motion-for-remand,
contending that a portion of appellant's complaint should be dismissed
because it was raised in a prior grievance. To support its argument,
the agency attached a step-1 grievance, filed July 15, 1994, concerning
appellant being denied leave and placed on AWOL on June 24, 1994.
Appellant opposed the motion-for-remand, arguing that at the time the
allegations occurred, he was not a bargaining-unit employee controlled by
the grievance process. The agency admitted that appellant, as a manager,
did not belong to the bargaining-unit when most of the allegations
occurred, but argued that his demotion to the bargaining-unit, effective
by June 20, 1994, occurred before he filed the grievance. Accordingly,
the agency reasoned, appellant was covered by the grievance process.
On August 31, 1998, the AJ agreed with the agency, remanded appellant's
complaint, and recommended that the agency dismiss allegations (1), (3),
(4), (5), and (6).
In a final decision (FAD) dated October 23, 1998, the agency dismissed
allegations (1), (3), (4), (5), and (6) pursuant to EEOC Regulation 29
C.F.R. �1614.107(d), for alleging matters raised in a prior grievance.<1>
Specifically, the agency cited to the step-1 grievance, noting that
appellant raised a �continuing sequence� of retaliation that included all
of his annual leave denials. Appellant received the FAD on October 28,
1998, and timely appealed to this Commission on November 27, 1998.
On appeal, appellant argues that the grievance only concerned the AWOL
he received on June 24, 1994. Appellant also argues that the grievance
was filed on June 15, 1994, not July 15, 1994. Appellant contends that
an agency official altered the date. Appellant also argues that he filed
his formal complaint on July 7, 1994, when he told the EEO office of his
intent to file. Counseling was not necessary, according to appellant,
because he had already undergone counseling in a prior complaint.
In response, the agency argues that it received the July 15, 1994
grievance from the union, and that union officials, not the agency,
changed the date. Further, argues the agency, appellant's dispute with
the grievance date is irrelevant, because appellant filed his formal
complaint on August 18, 1994, after he filed the grievance.
The record includes a copy of the collective-bargaining-agreement
(CBA) between the union and the agency. The CBA allows allegations of
discrimination to be raised either in a negotiated grievance process,
or in the EEO process, but not both. The record also includes a step-2
decision, dated March 28, 1995, from a grievance filed on February 7,
1994, by appellant, pertaining to thirty-nine hours of annual leave
lost at the end of 1993. Therein, the agency rejected appellant's
argument that his leave should be restored because he was denied annual
leave earlier in 1993. The record also contains the agency's response
to grievances filed between May 6, 1994 and May 23, 1994, concerning,
inter alia, appellant being denied leave on May 4, 6, 13, and 23, 1994,
and being placed on AWOL on May 13, 1994.
ANALYSIS AND FINDINGS
A complainant employed by an agency subject to 5 U.S.C. �7121(d), and
covered by a CBA permitting allegations of discrimination to be raised in
a negotiated grievance procedure, may allege employment discrimination
in one of two forums � the EEO process, or the negotiated grievance
procedure. See 29 C.F.R. �1614.301(a). By filing a grievance, or
a formal EEO complaint, the complainant is deemed to have elected that
forum, to the exclusion of the other. See id. Using the pre-complaint
process, i.e., counseling, does not constitute an election of the
EEO process. See id. An agency may dismiss a complaint, or portion
thereof, previously raised by the same complainant in a negotiated
grievance procedure that permits allegations of discrimination. See 29
C.F.R. �1614.107(d).
The record shows that under the terms of the subject CBA, employees
have the right to raise matters of alleged discrimination under the
statutory procedure or the negotiated grievance procedure, but not both.
The Commission, however, has refused to dismiss allegations raised in
prior grievances by non-bargaining unit employees. See Diefenderfer
v. Department of Transportation, EEOC Appeal No. 01980578 (Oct. 7,
1998) req. for recons. denied EEOC Request No. 05990222 (Apr. 8, 1999)
(reversing the dismissal of allegations previously raised in the grievance
process by an employee not covered by the CBA). In Diefenderfer, the
underlying grievances were dismissed because the complainant was not
covered by the CBA. In the present case, however, appellant's grievances
were decided on their merits, not dismissed for lack of jurisdiction.
Since appellant filed his formal complaint on August 18, 1994, after
he filed his grievances concerning allegations (1), (3), (5), and (6).
Therefore, we find that since appellant had access to the grievance
forum, and elected to pursue his allegations therein, the agency properly
dismissed allegations (1), (3), (5), and (6).
The record contains no evidence that appellant filed a grievance
regarding allegation (4). Thus, the agency failed to substantiate the
bases for its final decision with regard to allegation (4). See Marshall
v. Department of the Navy, EEOC Request No. 05910685 (Sept. 6, 1991).
Therefore, the Commission finds that the agency's dismissal of allegation
(4) was improper..
CONCLUSION
Accordingly, the agency's dismissal of allegations (1), (3), (5), and
(6) is AFFIRMED. The dismissal of allegation (4), however, is REVERSED,
and that allegation is REMANDED for further investigation.
ORDER
The agency is ORDERED to perform the following:
Consolidate the remanded allegation with appellant's accepted allegations;
Resume the processing of appellant's complaint from the point that it
ceased, in accordance with 29 C.F.R. �1614.108;
Acknowledge to appellant that it has received the remanded allegation
within fifteen (15) calendar days of the date this decision becomes final.
A copy of the agency's letter of acknowledgment to appellant must be
sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action.
The report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. ��1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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 (Z1092)
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:
November 3, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1Appellant's remaining allegations were held in abeyance pending the
outcome of the present appeal.