01A22456
06-20-2002
Mike C. Alvarez, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Mike C. Alvarez v. Department of Justice
01A22456
June 20, 2002
.
Mike C. Alvarez,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A22456
Agency No. I-01-W127
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision pertaining to his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. The Commission accepts the appeal
in accordance with 29 C.F.R. � 1614.405.
Complainant contacted the EEO office claiming that he was discriminated
against when on May 11, 2001, he received a letter of reprimand or
counseling for not using the �chain of command.� Informal efforts to
resolve complainant's concerns were unsuccessful. Subsequently, on
September 26, 2001, complainant filed a formal complaint based on race
(Hispanic).
On March 5, 2002, the agency issued a decision dismissing the complaint
on the grounds that complainant raised the same matter in a negotiated
grievance procedure that permits allegations of discrimination, pursuant
to 29 C.F.R. � 1614.107(a)(4). Specifically, the agency determined that
on June 21, 2001, a formal grievance regarding the May 11, 2001 letter
of reprimand was filed on complainant's behalf.
Complainant's presents no contentions on appeal.
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 1614 or the negotiated
grievance procedure, but not both. Further, �[a]n 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 irrespective
of whether the agency has informed the individual of the need to elect
or whether the grievance has raised an issue of discrimination.� 29
C.F.R. � 1614.301(a).
The record in the instant case includes a copy of the relevant portion
of the agency's collective bargaining agreement. The agreement provides
that �any claimed violation, misinterpretation or misapplication of any
law, rule or regulation affecting conditions of employment�may be raised
under its grievance procedure.<1> The record also contains a Step II
grievance, filed on June 21, 2001. The grievance addresses the same May
11, 2001 memo that is the subject of the instant complaint. Therefore,
the Commission finds that complainant elected to pursue the grievance
process at the time he filed the written grievance, months before he
filed his EEO complaint in September 2001.
Accordingly, the agency's decision to dismiss the complaint was proper
and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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
June 20, 2002
__________________
Date
1 The agreement also sets forth specific
exclusions, including �a complaint of discrimination which is listed
in 5 U.S.C. 2302(b)(1) if the employee has elected to use the statutory
appeal procedure.�