Merita M. Greer, Complainant,v.Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionMay 31, 2007
0120071751 (E.E.O.C. May. 31, 2007)

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