Arthur Gallegos, Complainant,v.F. Whitten Peters, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionSep 19, 2000
02a00013 (E.E.O.C. Sep. 19, 2000)

02a00013

09-19-2000

Arthur Gallegos, Complainant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.


Arthur Gallegos v. Department of the Air Force

02A00013

September 19, 2000

.

Arthur Gallegos,

Complainant,

v.

F. Whitten Peters,

Secretary,

Department of the Air Force,

Agency.

Appeal No. 02A00013

Agency No. 98-012

DISMISSAL OF APPEAL

EEOC Regulation 29 C.F.R. � 1614.401(d) provides that a grievant may

appeal the final decision of the agency, the arbitrator or the Federal

Labor Relations Authority on a grievance when an issue of employment

discrimination was raised in a negotiated grievance procedure that

permits such issues to be raised.<1>

In the present case, complainant received a three day suspension for

unauthorized use of the government sponsored American Express Card.

Complainant filed a grievance regarding his suspension and the grievance

was processed through Step III of the negotiated grievance procedure.

In a Step III decision dated April 27, 1998, the agency denied

complainant's grievance. Upon review of the record, however, we find

no evidence that complainant raised employment discrimination as part

of his grievance to the agency. The Commission therefore finds that, as

complainant did not raise a claim of prohibited discrimination as part of

the grievance, the Commission lacks jurisdiction on this matter.<2> See

Mines v. Department of Health and Human Services, EEOC Appeal No. 05940663

(May 30, 1995). Accordingly, complainant's appeal is hereby DISMISSED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0800)

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 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

September 19, 2000

__________________

Date

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 Part 29 C.F.R. Part 1614 in deciding the present appeal. The

regulations, as amended, may also be found at the Commission's website

at www.eeoc.gov.

2We note that on appeal, complainant asserts that the agency did not

provide certain information requested during the grievance, and that

this purportedly shows disparate treatment toward complainant because

of his Hispanic background. This belated attempt to raise an issue of

discrimination does not alter the fact that complainant's grievance did

not involve a claim of discrimination.