Donald M. Salter, Complainant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionJan 10, 2000
01991667 (E.E.O.C. Jan. 10, 2000)

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subsequently, rescinded and approved.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.