01991667
01-10-2000
Donald M. Salter, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Donald M. Salter, )
Complainant, )
)
)
v. ) Appeal No. 01991667
) Agency No. 99-2043
)
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
______________________________)
DECISION
On December 22, 1998, complainant filed a timely appeal of a December 10,
1998 final agency decision, which was received by him on December 21,
1998, dismissing the complaint for raising the same matter in a negotiated
grievance and for failure to state a claim.<1>
In the final decision, the agency identified the claims of the October 28,
1998 complaint as whether complainant was discriminated against based
on age (48), sex (male), and in reprisal for prior EEO activity when:
(1) he was rated �Unacceptable� and �Minimally Successful� in three
critical elements on his annual performance evaluation dated July 8,
1998, which resulted in the denial of his within-grade-increase (WGI);
(2) he was issued a letter of reprimand on October 1, 1998, for not
following the directions of his manager; and (3) his request to use
�use or lose� annual leave from November 9 - 19, 1998, was denied on
October 22, 1998. The agency stated that complainant previously filed
grievances on July 30, 1998, concerning claim (1) and on October 19,
1998, concerning claim (2). Specifically, with regard to claim (1),
the agency indicated that although complainant's grievance was denied,
management did agree to grant his WGI retroactively with interest because
he had not been timely notified of the WGI denial. With regard to claim
(3), the agency found that it failed to state a claim since its records
showed that the decision denying complainant's request for leave was,
subsequently, rescinded and approved. The agency indicated that its
time and attendance records for Pay Period 23 (11-8-98 through 11-21-98)
showed that complainant was on annual leave. The agency noted that
complainant was not entitled to compensatory damages since his claims
failed to state a claim.
The record contains a copy of the National Agreement Between the agency
and the National Treasury Employees Union. Sections 2A and 3A, Article 4
of the agreement permit an employee to raise allegations of discrimination
through either the EEO complaint process or the agency grievance process,
but not both.
Volume 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.107(a)(4)) provides that prior to a
request for a hearing in a case, the agency shall dismiss an entire
complaint where the complainant has raised the matter in a negotiated
grievance procedure that permits allegations of discrimination and
� 1614.301 indicates that the complainant has elected to pursue the
non-EEO process.
With regard to claims (1) and (2), the record indicates that complainant
previously filed grievances on July 30, 1998 and October 19, 1998,
respectively, prior to filing the instant complaint on October 28, 1998.
The record also indicates that under the National Agreement between the
agency and the National Treasury Employees Union, an agency employee
may process his/her discrimination allegations either through filing
a grievance or filing a formal EEO complaint, but not both. Thus,
we find that complainant made an election to pursue claims (1) and (2)
through the grievance process, and not the EEO process.
With regard to claim (3), the record, undisputed by complainant, indicates
that while complainant's request for �use or lose� annual leave was
initially denied, it was subsequently granted. On appeal, complainant
fails to provide any evidence that he sustained any personal harm or
loss as a result of the delay in granting the request. Accordingly,
the agency's final decision is hereby 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:
January 10, 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.