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.