01985013_r
12-08-1999
Sahag Tchakmakjian, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Sahag Tchakmakjian, )
Complainant, )
)
v. ) Appeal No. 01985013
) Agency No. XQ-96-007
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Logistics Agency), )
Agency. )
______________________________)
DECISION
On June 14, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD), dated May 12, 1998, pertaining to
his complaint of unlawful employment discrimination in violation of
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. �621 et seq., and Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. �2000e et seq.<1> The Commission accepts complainant's
appeal in accordance with EEOC Order No. 960, as amended.
In his formal complaint, dated March 19, 1996, complainant alleged that
he was subjected to discrimination on the bases of race (Armenian),
color (white), religion (Orthodox), national origin (Syrian), age (45),
sex (male), and in reprisal for prior activity when he received several
letters of reprimand from his supervisor during the years of 1995 and
1996. Specifically, complainant alleges that he was improperly accused
of making derogatory statements about agency personnel and the senior
management of a products company through an oral admonishment in May 1995.
Also in May 1995, complainant indicates that he was counseled regarding
his conduct and attitude towards his co-workers. In November 1995,
complainant alleges that he was discriminatorily issued a proposed
reprimand based on his conduct in May 1995, and false accusations
of disorderly conduct; and refusal to carry out proper orders.
Despite complainant's response, the reprimand was officially executed
on February 20, 1996. According to complainant, his supervisor has been
"too critical of my behavior and too lenient with my co-workers."
The agency dismissed complainant's complaint for raising a matter
previously raised in a grievance. Specifically, the agency noted that
complainant had previously initiated and subsequently filed a formal
grievance on February 28, 1996, and that this grievance was filed in a
negotiated grievance
procedure that permits claims of discrimination . The agency submitted
a copy of the collective bargaining agreement on which it relies.
This agreement provides for claims of discrimination to be raised through
the negotiated grievance process, and indicates that an employee must
elect either the negotiated grievance process or the EEO process, but
cannot use both.
On appeal, complainant contends, in an affidavit, that "I never made
any attempt to file or proceed with a union grievance." Furthermore,
complainant asserts that he never fulfilled the union's grievance-process
requirement that he request union participation, rather, he had informal
discussion regarding possible settlement only after contact was initiated
with the EEO office.
The record contains a copy of a completed, DCMDW form 173 (EMPLOYEE
GRIEVANCE FORM), signed and dated February 28, 1996, by complainant. The
grievance involves the same issues raised in complainant's discrimination
complaint. The record shows that complainant's grievance alleged that
he was subjected to unreasonable, unfounded retaliation in February 20,
1996, when he was formally reprimanded for making unfounded statements
about agency personnel and the senior management of a products company,
disregarding their reputations and official standing; disorderly conduct;
and refusing to carry out proper orders. Further, the record contains
a written decision on complainant's grievance finding that the actions
at issue were proper.
EEOC Regulation 29 C.F.R. �1614.301(a) states 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 claims of discrimination to
be raised in a negotiated grievance procedure, a person wishing to file a
complaint or grievance on a matter of alleged employment discrimination
must elect to raise the matter under either part 29 C.F.R. �1614 or the
negotiated grievance procedure, but not both. 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 29 C.F.R. �1614
irrespective of whether the agency has informed the individual of the need
to elect or whether the grievance has raised an issue of discrimination.
While complainant contends that he never filed a grievance, the evidence
of record clearly shows that complainant filed a grievance before he
filed his formal EEO complaint, both raising the same issue. Accordingly,
the agency's decision is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
December 8, 1999
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.