Richard S. Smith, Complainant,v.Timothy F. Geithner, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionJun 3, 2009
0120091061 (E.E.O.C. Jun. 3, 2009)

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