01984209
06-18-1999
Valerie E. Statute, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Valerie E. Statute v. Department of the Treasury
01984209
June 18, 1999
Valerie E. Statute, )
Appellant, )
)
v. ) Appeal No. 01984209
) Agency No. 98-3148
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
(Internal Revenue Service), )
Agency. )
______________________________)
DECISION
For the reasons set forth below, we find the agency committed no
reversible legal error in its April 3, 1998 final decision (FAD)
dismissing appellant's March 24, 1998 formal EEO complaint, pursuant
to 29 C.F.R. �1614.107(d), for having first filed a grievance under a
negotiated grievance procedure that permits allegations of discrimination
to be raised. Appellant has raised no arguments in her timely appeal
on April 28, 1998, to persuade us to reach a contrary conclusion.
We find appellant filed a grievance on February 11, 1998, alleging
that she had been prematurely removed from the position of a Corporate
Education Subject Matter Expert/Resident Lead Instructor (SME/RLI), in
the School of Taxation, Collection Institute. Although appellant did
not allege discrimination in connection with her grievance, we find she
was permitted to do so under the agency's Collective Bargaining Agreement
(CBA), a portion of which is contained in the record in the present case.
We also find that appellant works for an agency that is subject to 5
U.S.C. �7121(d) and whose employees are, therefore, permitted to file
either an EEO complaint or a negotiated grievance, but not both. See 29
C.F.R. �1614.301(a).
We find that appellant, on March 24, 1998, subsequent to the filing of
her grievance, filed her EEO complaint alleging discrimination based on
sex (female) and age (April 29, 1954),<1> when she was allegedly being
harassed into returning to the Pennsylvania District, and an allegedly
hostile environment with no hope for advancement, from the National
Office, Corporate Education. We find that appellant's allegations of
harassment do not change the gravamen of her EEO complaint: that she was
compelled against her will to leave her Corporate Education position.
We find this allegation identical to the allegation contained in
appellant's grievance and, therefore, properly dismissed under 29
C.F.R. �1614.107(d). However, to the extent appellant is alleging that
she is being harassed, subjected to a hostile environment, or otherwise
discriminated against for prohibited reasons by agency officials in the
workplace to which she has been returned, appellant is advised to seek
EEO counseling if she wishes to pursue those allegations further.
Finally, we note that, on January 21, 1999, appellant sought to file
an appeal, pursuant to 29 C.F.R. �1614.401(c), from a December 15,
1998 final, Step 3, grievance decision of the Pennsylvania District,
pertaining to the allegedly premature termination of appellant's detail
from the Pennsylvania District to Corporate Education. This latest
purported appeal is not now before us in the present decision, and,
therefore, we decline to address it. Appellant's contentions about the
grievance decision will be addressed under a separate docket number.
The FAD's dismissal of appellant's March 24, 1998 EEO complaint, pursuant
to 29 C.F.R. �1614.107(d), is hereby AFFIRMED.
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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
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. 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:
June 18, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1See 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
(ADEA) of 1967, as amended, 29 U.S.C. 621 et seq., respectively.