0120071751
05-31-2007
Merita M. Greer, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.
Merita M. Greer,
Complainant,
v.
Henry M. Paulson, Jr.,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120071751
Agency No. EEODFS-06-0838-F
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 22, 2007, dismissing her complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. In her
complaint, complainant alleged that she was subjected to discrimination
on the basis of age (born in 1940) when:
1. On May 15, 2006, she was issued a three-day suspension, effective
May 30 to June 1,2006; and
2. on or about August 7, 2006, she received an unjustifiably negative
midyear appraisal, and on August 22, 2006, she received a departure
appraisal and rating which reflected the findings in the midyear
appraisal.
The FAD dismissed claims 1 and 2 on the grounds that complainant
previously filed grievances on the same matters.
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.
In the instant case, the record shows that complainant filed grievances
concerning the matters identified in claims 1 and 2 prior to filing her
EEO complaint on these matters. 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
procedure or the negotiated grievance procedure, but not both. As the
record indicates that complainant elected to pursue the matter within the
grievance procedure, we find that the agency properly dismissed claims
(1 and 2) pursuant to 29 C.F.R. � 1614.107(a)(4).
The departure appraisal was issued because the manager who issued it moved
to a different unit. The cover letter with it stated it "reflects the
findings addressed in your midyear review. Please refer to your midyear
review to see areas where improvement is needed." Complainant filed
her grievance regarding the midyear appraisal on August 23, 2006,
one day after she received the departure rating. The grievance did
not specifically mention the departure rating. However, as found in
the FAD, it is inextricably intertwined with the midyear appraisal, and
hence was covered by the grievance. We also note that the counselor's
report indicates complainant and her then union representative said the
grievance concerned the midyear appraisal and departure rating.
The FAD 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
May 31, 2007
__________________
Date
2
0120071751
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0120071751