0120100010
03-30-2011
John J. Pusterhofer,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120100010
Agency No. ARFTMONM09JUN02710
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated August 28, 2009, dismissing 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. Upon
review, the Commission finds that Complainant's complaint was properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(4), because Complainant
first elected to pursue the matter in the negotiated grievance process.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Systems Engineer at the Agency's RDECOM CERDEC HQ facility in
Ft. Monmouth, New Jersey. Complainant filed a formal complaint alleging
that the Agency subjected him to discrimination on the basis of age (46)
when he learned that an employee's salary was taken into consideration
during the rating process. Complainant filed a grievance with the union
concerning his performance appraisal, and at that time he learned that,
"[w]hile performance is the driving factor for an employee's score;
there is an examination of an employee's current level of compensation
which is assessed against the level of work and responsibilities."
His grievance was denied.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(4),
because Complainant first filed a grievance on the matter, and
the Agency's negotiated grievance procedures allowed for claims of
discrimination to be raised. The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.301(a) states that when a person is
employed by an agency subject to 5 U.S.C. � 7121(d) and is covered by a
collective bargaining agreement that permits claims of discrimination to
be raised in a negotiated grievance procedure, the person wishing to file
a complaint or grievance on a matter of alleged employment discrimination
must elect to raise the matter under either part 1614 or the negotiated
grievance procedure, but not both. An aggrieved employee who files a
grievance with an agency whose negotiated agreement permits the acceptance
of grievances which allege discrimination may not thereafter file an
EEO complaint on the same matter under this part 1614 irrespective of
whether the agency has informed the individual of the need to elect or
whether the grievance has raised an issue of discrimination.
In the instant case, Complainant first elected to file a grievance with
respect to his performance rating. The record indicates that claims of
discrimination may be raised in the grievance procedure. As such, the
Commission finds that the subsequently filed EEO complaint was properly
dismissed.
Accordingly, the Agency's final decision dismissing Complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
March 30, 2011
__________________
Date
2
0120100010
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100010