Crystal Reimann Appellant,v.Robert E. Rubin, Secretary, Department of the Treasury, Agency

Equal Employment Opportunity CommissionFeb 17, 1999
01981856 (E.E.O.C. Feb. 17, 1999)

01981856

02-17-1999

Crystal Reimann Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency


Crystal Reimann v. Department of the Treasury

01981856

February 17, 1999

Crystal Reimann )

Appellant, )

) Appeal No. 01981856

v. ) Agency No. 98-3012

)

Robert E. Rubin, )

Secretary, )

Department of the Treasury, )

Agency )

)

DECISION

INTRODUCTION

Appellant filed an appeal with this Commission from a final agency

decision concerning her complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq., and �501 of the Rehabilitation Act of 1973,

as amended, 29 U.S.C. �791 et seq. The final agency decision was

dated December 4, 1997 and received by appellant on December 6, 1997.

The appeal was postmarked January 5, 1998. Accordingly, the appeal is

timely (see 29 C.F.R. �1614.402(a)), and is accepted in accordance with

EEOC Order No. 960, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed appellant's

complaint on the grounds that she had filed a grievance on the same

matter under the agency's negotiated grievance procedure.

BACKGROUND

Appellant filed a formal complaint of discrimination on October 20, 1997

alleging discrimination on the bases of sex (female), physical disability

(back and neck injury) and reprisal (retaliation for prior EEO activity)

when she was informed on July 9, 1996 that the agency would not change

her absent without leave (AWOL) status for the period of June 12, 1996

through July 9, 1996 to leave without pay (LWOP) status. In its final

agency decision dated December 4, 1997, the agency dismissed appellant's

complaint on the grounds that she had already raised this matter under

the agency's negotiated grievance procedure prior to filing the subject

EEO complaint. This appeal followed.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. �1614.107(d) provides that the agency shall

dismiss a complaint or a portion of a complaint where the complainant

has raised the matter in a negotiated grievance procedure that permits

allegations of discrimination.

EEOC Regulation 29 C.F.R. �1614.301(a) provides, in pertinent part, 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 allegations

of discrimination to be raised in a negotiated grievance procedure, a

person wishing to file a complaint or a 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

election to proceed under a negotiated grievance procedure is indicated

by the filing of a timely written grievance. 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 a complaint on the same matter under this part 1614....Any such

complaint filed after a grievance has been filed on the same matter

shall be dismissed... [emphasis added]

The record reveals that appellant filed a grievance over being placed on

AWOL status as opposed to LWOP status on July 31, 1996. Appellant pursued

the matter through to a Step III grievance meeting and on May 28, 1997 the

agency issued a decision denying the grievance. Appellant subsequently

sought EEO counseling, first contacting a counselor about her claim

on June 25, 1997, and filing her formal complaint on October 20, 1997,

alleging discrimination on the bases of sex, disability and reprisal.

The collective bargaining agreement that governed the appellant's

employment clearly states at Article 41 [Employee Grievance Procedure],

Section 2, Part D that "[e]mployees who believe they have been illegally

discriminated against...have the right to raise the matter under the

statutory procedure or the negotiated grievance procedure of this

Agreement, but not both."

On appeal, appellant makes no attempt to differentiate her formal EEO

complaint from the filed grievance over the AWOL/LWOP status issue,

and does not present any arguments as to why she should be allowed

to proceed under 29 C.F.R. Part 1614 given the collective bargaining

agreement language.

The Commission finds that pursuant to 29 C.F.R. �1614.301(a) appellant

elected to proceed under the agency's negotiated grievance procedure on

July 31, 1996. Therefore, she could not file a formal EEO complaint on

the same matter. The Commission's regulations mandate that the agency

dismiss appellant's complaint.

Accordingly, the decision of the agency was proper and is 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. �1614.604(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:

Feb 17, 1999

______________ ___________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations