[Redacted], Michal L., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Apr 28, 2022

Appeal No. 2021002101 (E.E.O.C. Apr. 28, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Michal L.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021002101 Hearing No. 410-2020-00485X Agency No. 2001-0557-2020101564 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final order dated January 29, 2021 implementing an AJ’s decision procedurally dismissing Complainant’s complaint. BACKGROUND During the period at issue, Complainant worked for the Agency as a Police Officer in Dublin, Georgia. On February 5, 2020, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination in reprisal for prior protected EEO activity. By letter dated March 29, 2020, the Agency accepted the formal complaint for investigation and determined that it was comprised of the following two claims: 1. [Complainant was] not selected for the Supervisory Security Specialist (Police Captain), Vacancy Announcement No. CBBM10638793-19-ER position. 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. 2021002101 2 2. [Complainant was] not selected for the Supervisory Police Officer (Lieutenant), Vacancy Announcement No. CBBM 10629926-19-ER position. The Agency, however, dismissed a hostile work environment claim for failure to state a claim reasoning that it was not sufficiently severe or pervasive to set forth an actionable claim. Upon completion of the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). By Order of Dismissal dated January 27, 2021, the AJ dismissed the formal complaint on the grounds that Complainant had previously filed a grievance on the same matters. The AJ reasoned that Complainant previously filed a grievance on January 31, 2020 through his union, on the non-selections at issue in the instant EEO complaint. The AJ further found that the Agency’s collective bargaining agreement (CBA) allowed members to file a grievance alleging discrimination. In addition, the AJ set forth that the CBA allowed employees to file a grievance or an EEO complaint on discrimination claims but not both. The AJ also found that an Initial Conference was held via telephone on January 27, 2021 and that the parties had a “detailed discussion of the facts of the case.” AJ Decision at 2. Based on the foregoing, the AJ found that Complainant previously filed a grievance on the same matters prior to his February 5, 2020 formal EEO complaint. The Agency issued a final order implementing the AJ’s decision. The instant appeal followed. On appeal, Complainant asserts that he filed his formal EEO complaint on February 5, 2020, prior to his grievance. Complainant asserts that he filed his grievance with an Agency official on February 22, 2020. Complainant further asserts that the grievance was never addressed. In response, the Agency requests that we affirm its final order implementing the AJ’s decision dismissing Complainant’s complaint. The Agency asserts that during the Initial Conference Complainant stated that he had filed a grievance on January 31, 2020. The Agency asserts that the record does not clearly support Complainant’s assertion, on appeal, that he filed his grievance before filing the instant formal EEO complaint. The Agency asserts that the Step 1 grievance is dated January 31, 2020. ANALYSIS AND FINDINGS EEOC Regulation § 29 C.F.R. 1614.109(b) provides, “Administrative judges may dismiss complaints pursuant to §1614.107, on their own initiative, after notice to the parties, or upon an agency’s motion to dismiss a complaint.”2 (emphasis added). Here, the record is devoid of evidence that the AJ issued a written Notice of Intent to the parties prior to the Order of Dismissal. 2 The AJ’s November 18, 2020 Acknowledgment Order provided, in pertinent part, that “[i]f a case is proper for dismissal due to procedural…issues, the [AJ] will issue a Notice of Proposed Dismissal providing the parties with an opportunity to respond.” 2021002101 3 In addition, the record is devoid of evidence that the Agency filed a Motion to Dismiss. Thus, it is not clear whether Complainant had an adequate opportunity to respond, in writing, prior to the AJ’s Dismissal Order. EEOC Regulation 29 C.F.R. § 1614.107(a)(4) provides that an EEO complaint may be dismissed where the complainant has raised the matter in a negotiated grievance procedure that permits allegations of discrimination and § 1614.301 indicates that the complainant has first elected to pursue the non-EEO process. Here, the AJ dismissed the complaint on the grounds that Complainant previously filed a grievance on the same matter. However, it is unclear from the record whether Complainant filed the grievance before he filed the formal EEO complaint on February 5, 2020, indicating an election of forum. We acknowledge that the record contains a letter from the Union to an Agency Official, dated January 31, 2020, referencing the grievance. However, it is not clear from the record on what date this grievance was actually filed. The January 31, 2020 letter, while dated, does not contain a certificate of service. In addition, the record contains copies of emails from Complainant to Agency officials dated February 17, 2020 and February 22, 2020 (after the filing of the February 5, 2020 formal EEO complaint) with the subject “Step 1 Grievance” and with an attachment labelled “Grievance”. We further acknowledge that Complainant, in his Preliminary Case Information Report, provided that he had filed a January 30, 2020 grievance. However, Complainant, in his formal complaint form, responded that he had not filed a union grievance on any of the claims that were encompassed within his formal EEO complaint. Based on the conflicting evidence about when the grievance was filed, we conclude that there is no definitive way to resolve the election issue. Therefore, we vacate the AJ’s decision dismissing Complainant’s complaint for lack of evidentiary support. Accordingly, we VACATE the Agency’s final order implementing the AJ’s decision dismissing Complainant’s complaint and we REMAND this matter for an adjudication on the merits of the complaint as set forth in the ORDER below. ORDER Within 30 calendar days of the date this decision is issued, the Agency shall submit a renewed request for a hearing on Complainant’s behalf, a copy of this appellate decision, and the complaint file to the Hearings Unit of the EEOC's Atlanta District Office. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall issue a decision in accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. 2021002101 4 Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). 2021002101 5 Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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. 2021002101 6 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 April 28, 2022 Date