01992703
02-09-2000
Richard A. Denzler, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Richard A. Denzler, )
Complainant, )
)
v. )
) Appeal No. 01992703
Lawrence H. Summers, ) Agency No. 99-4070
Secretary, )
Department of the Treasury, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) pertaining to his 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.<1> The Commission
accepts the appeal in accordance with EEOC Order No. 960, as amended.
On November 13, 1998, complainant contacted the EEO office claiming that
he was subjected to discrimination based on his age when management failed
to select him for the position of Internal Revenue Agent, GS-512-13,
Vacancy Announcement # NPB-LA-98-132. Informal efforts to resolve
complainant's concerns were unsuccessful. Accordingly, on December 18,
1998, complainant filed a formal complaint.
The agency issued a FAD, dated January 22, 1999, dismissing his complaint
for untimely counselor contact and for previously filing a grievance which
raised the same claim. Specifically, the FAD stated that on July 13,
1998 complainant elected to file a grievance regarding his non-selection
for Vacancy No. NPB-LA-98-132; and that after the second step meeting,
complainant withdrew his grievance and filed the instant complaint.
According to the FAD, since the grievance predated the complaint,
complainant elected the negotiated grievance procedure. With regard
to complainant's untimely counselor contact, the agency stated that
complainant was notified of his non-selection on June 10, 1998 but did
not contact a counselor until November 13, 1998.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 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, complainant admits that he filed a grievance
regarding his non-selection prior to filing his EEO complaint.
On appeal, however, complainant argues that the guidelines were
unclear and he believed that by withdrawing his grievance he was free
to file an EEO complaint. According to complainant, he was not using
both forums. In light of the record before us, we are not persuaded
by complainant's arguments. The record shows that under the terms of
the agency's union agreement, employees �have the right to raise the
[discriminatory] matter under the statutory procedure or the negotiated
grievance procedure of this Agreement, but not both� (emphasis added).
Further, the �EEO Counselor Checklist� clearly states that the aggrieved
individual �must elect to raise the matter either under part 1614,
or the negotiated procedure, but not both.� Complainant was also
informed that an election of the negotiated grievance procedure is
�indicated by the filing of a written grievance.� Therefore, we find
that complainant elected to pursue the matter within the grievance
procedure and the complaint was properly dismissed by the agency pursuant
to 29 C.F.R. �1614.107(a)(4).
Because of our disposition we do not consider whether the complaint was
properly dismissed for untimely counselor contact.
Accordingly, the agency's decision to dismiss the complaint for raising
the same matter that was previously the subject of a grievance was proper
and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
February 9, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.