0120160747
03-18-2016
Bruce P.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Bruce P.,1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0120160747
Agency No. HS-CBP-24432-2015
DECISION
Complainant timely appealed to this Commission from the Agency's decision dated November 20, 2015, dismissing 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Seized Property Specialist (GS-1801-11) at the Agency's Otay Mesa Cargo Facility, San Diego Field Office in Otay Mesa, California.
On August 26, 2015, Complainant filed a formal complaint alleging that the Port Director ("PD") named in his previous EEO actions discriminated against him on the bases of race (White) and reprisal (filing EEO complaints in 2008 and 2010), by subjecting him to a seven day suspension starting July 20, 2015 for "Unprofessional Conduct" relating to an incident that occurred on May 1, 2014.
On May 1, 2014, Complainant and a coworker ("CW"), who had a history of discord, began arguing; when Complainant was allegedly overheard "threatening" CW. Complainant was called into a meeting with his union steward and management. Complainant was issued Cease and Desist Letter for the alleged misconduct, and was immediately transferred from the Vault to the Fines, Penalties and Forfeitures ("FP&F") office. Management also issued Complainant a General Notice of Investigation, as they intended to conduct an inquiry into the matter. Complainant was told that the reason he, and not CW, was relocated was to avoid a "conflict of interest" since CW's wife worked as a supervisor at FP&F.
On June 27, 2014, Complainant filed a formal EEO complaint on the bases of reprisal and race (PE and CW are Hispanic). Specifically, he alleged that PD was responsible for his forced transfer to FP&F and the allegation that he "threatened" CW, on May 1, 2014, resulting in the investigation of his alleged unprofessional conduct. On January 6, 2015, the matter was docketed for a hearing at the EEOC Los Angeles District Office and is pending review by an Administrative Judge. (Agency No. HS-CBP 01282-2014, Complaint Nbr. 480-2015-00205X)
On December 17, 2014 Complainant and his union steward met with management and he was issued a fourteen (14) day proposed letter of suspension for Unprofessional Conduct. In January 2015, Complainant's union steward presented an oral reply to the proposed suspension, resulting in a May 19, 2015 Agency decision to mitigate the suspension from fourteen (14) to seven (7) days. On June 22, 2015, Complainant, represented by his union steward, filed a Step 2 Grievance, requesting the seven (7) day suspension be reduced to a letter of reprimand. The Agency responded by letter on June 23, 2015, canceling the start date of the suspension pending a decision on the Step 2 Grievance. On July 1, 2015, Complainant, through his union steward, withdrew the grievance. By letter dated July 7, 2015, the Agency informed Complainant that the seven day suspension would begin on July 20, 2015. Complainant served the suspension then contacted an EEO Counselor on July 27, 2015
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(4).
ANALYSIS AND FINDINGS
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. 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 irrespective of whether the agency has informed the individual of the need to elect or whether the grievance has raised an issue of discrimination.
Neither party disputes that the suspension in the instant complaint arose from an employment action covered in the applicable Collective Bargaining Agreement. When the findings of the investigation on Complainant's "Unprofessional Conduct" were revealed on December 17, 2014 and Complainant was issued a suspension as a result, he had the choice of initiating another EEO claim or filing a grievance. Complainant chose to pursue a grievance months before he brought the instant complaint. Even though Complainant decided to withdraw his Step 2 Grievance before a decision was rendered, we have previously found that withdrawing a timely-filed grievance does not abrogate its effect for purposes of an election. See Sieczkowski v. Social Security Administration, EEOC Appeal No. 01A45859 (Aug. 29, 2005)
On appeal, Complainant asserts that the instant complaint is part of the EEO complaint, filed on June 27, 2014, in which he alleges that the investigation itself was a discriminatory act. Here, the discriminatory act is the suspension issued based on the findings of the investigation. Even though the suspension was disciplinary action directly resulting from the subject of Complainant's June 27, 2014 complaint, it is a separate claim. Complainant also alleges that he attempted to amend his June 27, 2014 complaint to include the suspension as an additional discriminatory act. He properly brought the suspension as a timely EEO claim; however, he already filed a grievance on the same matter. Even though the suspension was decreased from the original fourteen (14) to seven (7) days, it arises from the same suspension named in his previously filed grievance, so it is ineligible for EEOC review.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 18, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120160747
2
0120160747