0120091061
06-03-2009
Richard S. Smith, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Richard S. Smith,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120091061
Agency No. IRS080808F
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 16, 2008, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), 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. In his complaint, complainant alleged that he
was subjected to discrimination on the bases of race (Caucasian), age
(47 years old at time of incidents), and reprisal for prior protected
EEO activity under a statute that was unspecified in the record when:
1. On October 10, 2007, a manager (RMO1) misled complainant into believing
he did not have to attend NACVA CENTRA training;
2. On October 10, 2007 RMO1 further denied complainants request to attend
business valuation training;
3. On November 27, 2007, another manager (RMO2) yelled at and threatened
Complainant;
4. Between November 27 and December 11, 2007, complainant was transferred
to another team;
5. On December 11, 2007, RMO2 issued complainant a letter of admonishment;
and
6. On June 19, 2008, complainant received an unjustifiably low annual
performance appraisal rating.
The agency dismissed claim 4 for untimely EEO Counselor contact, and
the remaining claims on the grounds that complainant had already filed
grievances on the same claims.
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 a grievance
concerning the matters identified in claims 1, 2, 3 and 5 on December
13, 2007, and a second grievance, concerning the matter identified in
claim 6, on July 3, 2008. Complainant did not file his EEO complaint
until September 26, 2008. 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.
Complainant argues that he was misled by agency EEO officials into
believing that he could file under both procedures, and that he could
still file an EEO claim after filing a grievance on the same matter.
Complainant states that he met with two agency EEO officials (ERO1 and
ERO2) on February 13, 2008 "to discuss whether I actually could begin
the EEO process after receiving management's first level response to
my grievance. At that meeting they stated I could proceed with the EEO
process after I received management's last response to my grievance."
Complainant's Appellate Brief. Complainant further states that he
followed that up with emails to ERO's 1 & 2, dated February 14 and April
30, 2008, in which he stated he was pursuing the grievance process and
intended to next pursue the EEO process. See id. Complainant argues
that had he been informed that he could not pursue both processes,
he would have withdrawn from the grievance process and immediately
initiated the EEO process.
The agency produced emails from ERO1 who stated that ERO2 no longer worked
at the agency and who denied that either she or ERO2 told complainant
that he could pursue both processes. The agency found that complainant's
claim that he was misinformed was not persuasive but that, even assuming
for the sake of argument that he had been misled, he filed his first
grievance, covering the matters raised in claims 1, 2, 3, and 5, on
December 13, 2007, while any misinformation, according to complainant,
occurred on or about February 13, 2008 and hence could not have induced
him to select the grievance process instead of the EEO process.
Following a review of the record we find that complainant has not met
his burden of establishing that he was misled by agency officials
into selecting the grievance process instead of the EEO process.
We note that complainant has not produced any copies of emails or other
communication from any agency official informing him that that he could
pursue both processes. We further note that the agency's Collective
Bargaining Agreement states that employees may not choose both the EEO
and the grievance process. In addition the record shows that EEO posters
were posted at complainant's work facility notifying employees of the
deadlines for initiating the EEO process. Finally, we note that the
Commission has consistently held that the filing of a grievance does
not toll the running of the time limit to contact an EEO Counselor.
See Miller v. United States Postal Service, EEOC Request No. 05880835
(February 2, 1989).
Complainant states that had he not been misled, he would have withdrawn
his first grievance before he filed his formal complaint. The Commission,
however, finds that by that time a valid election had already been made.
It is well-settled that withdrawing a grievance does not abrogate its
effect for the purposes of an election, and will not entitle complainant
to then file an EEO complaint. See Marsh v. Department of the Treasury,
EEOC Request No. 05910383 (August 12, 1991). As the record indicates
that complainant elected to pursue claims 1, 2, 3, 5 and 6 within the
grievance procedure, we find that the agency properly dismissed those
claims pursuant to 29 C.F.R. � 1614.107(a)(4).
As regards claim 4, which was not raised in a grievance, the record shows
that the alleged discriminatory incident occurred no later than December
11, 2007. Complainant, however, did not contact an EEO counselor until
July 17, 2008, which is beyond the 45-day regulatory limit. Complainant,
on appeal, has presented no persuasive arguments or evidence warranting
an extension of the time limit for initiating EEO Counselor contact.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
June 3, 2009
__________________
Date
2
0120091061
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120091061