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