Cary J.,1 Complainant,v.R. Alexander Acosta, Secretary, Department of Labor, Agency.

Equal Employment Opportunity Commission

Mar 8, 2019

2019000300 (E.E.O.C. Mar. 8, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Cary J.,1
Complainant,

v.

R. Alexander Acosta,
Secretary,
Department of Labor,
Agency.

Request No. 2019000300

Appeal No. 0120182131

Agency No. F1811059

DECISION ON REQUEST FOR RECONSIDERATION

The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in Cary J. v. Dep’t of Labor, EEOC Appeal No. 0120182131
(Sept. 5, 2018). EEOC Regulations provide that the Commission may, in its discretion, grant a
request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. §
1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. §
1614.405(c).

On February 28, 2018, Complainant filed a formal complaint alleging that the Agency subjected
him to discrimination based on race (African American) when, on October 19, 2017,
Complainant’s rating performance evaluation was lowered from “Highly Effective” to “Effective.”

The Agency dismissed the formal complaint pursuant to 29 C.F.R. § 1614.107(a)(4) for raising the
same matters that were brought in a negotiated grievance procedure that permitted claims of
discrimination.

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.
2019000300

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Complainant appealed, in the previous decision, the Commission reversed the Agency’s decision
to dismiss the complaint finding that the Agency had not submitted sufficient evidence supporting
its dismissal decision. The Commission remanded the complaint for further processing.

In its request for reconsideration, the Agency argues that it provided the relevant collective
bargaining agreement as part of the appellate record. After reviewing the previous decision and
the entire record, the Commission finds that the relevant provisions of the collective bargaining
agreement were submitted by the Agency as an attachment to their Brief. Since this information
was inadvertently overlooked, the Commission VACATES the appellate decision and will address
the propriety of the Agency’s dismissal decision.

ANALYSIS

The matter before is whether the Agency properly dismissed Complainant’s complaint pursuant to
29 C.F.R. § 1614.107(a)(4) for raising the same matters that were brought in a negotiated grievance
procedure that permits claims of discrimination.

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. 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.

The record indicates that Complainant was covered by a collective bargaining agreement that
permitted grievants to raise allegations of discrimination under EEO procedure or the negotiated
grievance procedure, but not both. Further, the record demonstrates that Complainant elected to
file a grievance on December 18, 2017, regarding his Fiscal Year 2017 performance evaluation.
Upon review, we agree with the Agency that Complainant elected to raise his allegations regarding
his performance evaluation in the negotiated grievance process and cannot also raise the same
matter in the EEO complaint process. Based on the foregoing, we find that the Agency properly
dismissed the complaint for raising the same claim in a negotiated grievance procedure that
permitted allegations of discrimination pursuant to 29 C.F.R. § 1614.107(a)(4).

Accordingly, the Agency's decision to dismiss the formal complaint for failure to state a claim is
AFFIRMED. As this is the first time the propriety of the Agency’s dismissal was addressed, we
shall provide both parties with reconsideration rights.

2019000300

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. 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. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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.

2019000300

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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’s signature
Carlton M. Hadden, Director
Office of Federal Operations

March 08, 2019
Date