01981232
01-08-1999
Haruto Arima, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Haruto Arima v. Department of the Treasury
01981232
January 8, 1999
Haruto Arima, )
Appellant, )
)
v. ) Appeal No. 01981232
) Agency No. 98-4003
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his 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 the Age Discrimination in Employment
Act of 1967, as amended, 29 U.S.C. �621 et seq. The final agency
decision was received by appellant on November 11, 1997. The appeal
was postmarked November 22, 1997. 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.
BACKGROUND
Appellant contacted an EEO counselor on September 3, 1997, regarding
allegations of discrimination. Specifically, appellant alleged that
he was discriminated against when he was removed from his position
as team coordinator and received an unfair performance appraisal on
August 7, 1997. Informal efforts to resolve appellant's concerns
were unsuccessful. Accordingly, on October 2, 1997, appellant filed a
formal complaint alleging that he was the victim of unlawful employment
discrimination on the bases of race (Asian-American), color (yellow),
sex (male) and age (5/22/33).
On October 30, 1997, the agency issued a final decision dismissing
appellant's complaint on the grounds that the matter raised in appellant's
complaint had been previously raised in a negotiated grievance procedure
that permits allegations of discrimination. Specifically, the agency
determined that on April 15, 1997 appellant filed a formal grievance
through the agency's formal grievance procedure concerning appellant's
removal from his position as team leader. The agency also found that
the issue of appellant's appraisal was inextricably intertwined with
the issues involved in his grievance.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.301(a)provides 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, the employee 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 grievance procedure, but not both. An employee who files a
grievance with an agency whose grievance procedure permits the raising
of allegations of discrimination may not thereafter file a complaint on
the same matter under part 1614, regardless of whether the grievance
raised an issue of discrimination.
The record herein, indicates that on April 15, 1997 appellant filed
a grievance with regard to his removal from his position as team
coordinator prior to raising this issue in the instant complaint. The
record contains a copy of the National Agreement between appellant's union
and the agency. Upon review, the Commission determines that the agency's
negotiated grievance procedure permits allegations of discrimination.
We find that appellant made an election to proceed through the negotiated
grievance procedure. We also find that because the performance appraisal
at issue covered the period from July 1, 1996 through March 19, 1997,
the issue was inextricably intertwined with the issue raised in the
grievance. The agency properly dismissed appellant's complaint pursuant
to 29 C.F.R. �1614.107(d).
CONCLUSION
Accordingly, the agency's decision dismissing appellant's complaint is
hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (MO795)
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:
January 8, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations