Harryv.Ferzetti, Appellant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionNov 3, 1999
01991220_r (E.E.O.C. Nov. 3, 1999)

01991220_r

11-03-1999

Harry V. Ferzetti, Appellant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.


Harry V. Ferzetti, )

Appellant, )

)

v. ) Appeal No. 01991220

) Agency No. TD 94-1210

Lawrence H. Summers, )

Secretary, )

Department of the Treasury, )

Agency. )

______________________________)

DECISION

Appellant sought EEO counseling on July 7, 1994, and subsequently filed

a formal complaint of discrimination on August 18, 1994. In his formal

complaint, appellant alleged that he was subjected to discrimination on

the bases of national origin (Italian), religion (Catholic), age (date

of birth January 19, 1945), and in reprisal for prior EEO activity in

violation of Title VII of the Civil Rights Act of 1964, 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. when:

During a period from June 10, 1993, through September 10, 1993, appellant

was denied the use of annual leave;

On October 6, 1993, appellant received a minimally successful evaluation;

Appellant was forced to lose thirty-nine (39) hours of annual leave

for the leave year 1993;

From January 3, 1994, through January 7, 1994, appellant was forced to

use annual leave;

During a period from May 4, 1994, through June 24, 1994, appellant was

denied the use of annual leave;

On May 4, 6, and 13, 1994, and on June 10 and 24, 1994, appellant was

placed on Away-Without-Official-Leave AWOL (Absence Without Leave); and

On June 27, 1994, appellant was reassigned from his position as

Examination Automation Program Manager, GM-340-13.

In a notice of processing dated December 19, 1994, the agency accepted

appellant's allegations. After the allegations were investigated,

appellant requested a hearing with an EEOC Administrative Judge (AJ)

on July 21, 1997. On May 4, 1998, the agency filed a motion-for-remand,

contending that a portion of appellant's complaint should be dismissed

because it was raised in a prior grievance. To support its argument,

the agency attached a step-1 grievance, filed July 15, 1994, concerning

appellant being denied leave and placed on AWOL on June 24, 1994.

Appellant opposed the motion-for-remand, arguing that at the time the

allegations occurred, he was not a bargaining-unit employee controlled by

the grievance process. The agency admitted that appellant, as a manager,

did not belong to the bargaining-unit when most of the allegations

occurred, but argued that his demotion to the bargaining-unit, effective

by June 20, 1994, occurred before he filed the grievance. Accordingly,

the agency reasoned, appellant was covered by the grievance process.

On August 31, 1998, the AJ agreed with the agency, remanded appellant's

complaint, and recommended that the agency dismiss allegations (1), (3),

(4), (5), and (6).

In a final decision (FAD) dated October 23, 1998, the agency dismissed

allegations (1), (3), (4), (5), and (6) pursuant to EEOC Regulation 29

C.F.R. �1614.107(d), for alleging matters raised in a prior grievance.<1>

Specifically, the agency cited to the step-1 grievance, noting that

appellant raised a �continuing sequence� of retaliation that included all

of his annual leave denials. Appellant received the FAD on October 28,

1998, and timely appealed to this Commission on November 27, 1998.

On appeal, appellant argues that the grievance only concerned the AWOL

he received on June 24, 1994. Appellant also argues that the grievance

was filed on June 15, 1994, not July 15, 1994. Appellant contends that

an agency official altered the date. Appellant also argues that he filed

his formal complaint on July 7, 1994, when he told the EEO office of his

intent to file. Counseling was not necessary, according to appellant,

because he had already undergone counseling in a prior complaint.

In response, the agency argues that it received the July 15, 1994

grievance from the union, and that union officials, not the agency,

changed the date. Further, argues the agency, appellant's dispute with

the grievance date is irrelevant, because appellant filed his formal

complaint on August 18, 1994, after he filed the grievance.

The record includes a copy of the collective-bargaining-agreement

(CBA) between the union and the agency. The CBA allows allegations of

discrimination to be raised either in a negotiated grievance process,

or in the EEO process, but not both. The record also includes a step-2

decision, dated March 28, 1995, from a grievance filed on February 7,

1994, by appellant, pertaining to thirty-nine hours of annual leave

lost at the end of 1993. Therein, the agency rejected appellant's

argument that his leave should be restored because he was denied annual

leave earlier in 1993. The record also contains the agency's response

to grievances filed between May 6, 1994 and May 23, 1994, concerning,

inter alia, appellant being denied leave on May 4, 6, 13, and 23, 1994,

and being placed on AWOL on May 13, 1994.

ANALYSIS AND FINDINGS

A complainant employed by an agency subject to 5 U.S.C. �7121(d), and

covered by a CBA permitting allegations of discrimination to be raised in

a negotiated grievance procedure, may allege employment discrimination

in one of two forums � the EEO process, or the negotiated grievance

procedure. See 29 C.F.R. �1614.301(a). By filing a grievance, or

a formal EEO complaint, the complainant is deemed to have elected that

forum, to the exclusion of the other. See id. Using the pre-complaint

process, i.e., counseling, does not constitute an election of the

EEO process. See id. An agency may dismiss a complaint, or portion

thereof, previously raised by the same complainant in a negotiated

grievance procedure that permits allegations of discrimination. See 29

C.F.R. �1614.107(d).

The record shows that under the terms of the subject CBA, employees

have the right to raise matters of alleged discrimination under the

statutory procedure or the negotiated grievance procedure, but not both.

The Commission, however, has refused to dismiss allegations raised in

prior grievances by non-bargaining unit employees. See Diefenderfer

v. Department of Transportation, EEOC Appeal No. 01980578 (Oct. 7,

1998) req. for recons. denied EEOC Request No. 05990222 (Apr. 8, 1999)

(reversing the dismissal of allegations previously raised in the grievance

process by an employee not covered by the CBA). In Diefenderfer, the

underlying grievances were dismissed because the complainant was not

covered by the CBA. In the present case, however, appellant's grievances

were decided on their merits, not dismissed for lack of jurisdiction.

Since appellant filed his formal complaint on August 18, 1994, after

he filed his grievances concerning allegations (1), (3), (5), and (6).

Therefore, we find that since appellant had access to the grievance

forum, and elected to pursue his allegations therein, the agency properly

dismissed allegations (1), (3), (5), and (6).

The record contains no evidence that appellant filed a grievance

regarding allegation (4). Thus, the agency failed to substantiate the

bases for its final decision with regard to allegation (4). See Marshall

v. Department of the Navy, EEOC Request No. 05910685 (Sept. 6, 1991).

Therefore, the Commission finds that the agency's dismissal of allegation

(4) was improper..

CONCLUSION

Accordingly, the agency's dismissal of allegations (1), (3), (5), and

(6) is AFFIRMED. The dismissal of allegation (4), however, is REVERSED,

and that allegation is REMANDED for further investigation.

ORDER

The agency is ORDERED to perform the following:

Consolidate the remanded allegation with appellant's accepted allegations;

Resume the processing of appellant's complaint from the point that it

ceased, in accordance with 29 C.F.R. �1614.108;

Acknowledge to appellant that it has received the remanded allegation

within fifteen (15) calendar days of the date this decision becomes final.

A copy of the agency's letter of acknowledgment to appellant must be

sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action.

The report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503(a). The appellant also has the right

to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. ��1614.408, 1614.409, and 1614.503(g). Alternatively,

the appellant has the right to file a civil action on the underlying

complaint in accordance with the paragraph below entitled "Right to File

A Civil Action." 29 C.F.R. ��1614.408 and 1614.409. A civil action for

enforcement or a civil action on the underlying complaint is subject to

the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (T0993)

This decision affirms the agency's final decision in part, but it also

requires the agency to continue its administrative processing of a

portion of your complaint. You have the right to file a civil action

in an appropriate United States District Court on both that portion of

your complaint which the Commission has affirmed AND that portion of the

complaint which has been remanded for continued administrative processing.

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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 (Z1092)

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:

November 3, 1999

__________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

1Appellant's remaining allegations were held in abeyance pending the

outcome of the present appeal.