a Milton D,1 Complainant,v.Robert M. Speer, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Feb 23, 2017

0120170463 (E.E.O.C. Feb. 23, 2017)

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

a
Milton D,1
Complainant,

v.

Robert M. Speer,
Acting Secretary,
Department of the Army,
Agency.

Appeal No. 0120170463

Agency No. ARRIA16AUG03199

DECISION

Complainant filed an appeal with this Commission from the Agency’s decision dated October
10, 2016, dismissing 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.

At the time of events giving rise to this complaint, Complainant worked as an Equipment
Specialist at the Agency’s Rock Island Arsenal facility in Rock Island, Illinois. On September
23, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to
discrimination on the bases of his age (62 at the relevant time) and in reprisal for prior
protected EEO activity when on July 6, 2016, management issued him notice of a five-day
suspension.

In its final decision, the Agency dismissed the complaint, pursuant to 29 C.F.R.
§1614.107(a)(4), finding that Complainant had already elected to challenge his removal in a
grievance that allowed for claims of discrimination. Complainant makes no arguments 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, the person

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.
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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 an EEO 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.

Here, the record establishes that Complainant filed a grievance challenging his suspension on
July 20, 2016, prior to filing his EEO complaint on September 23, 2016. Further, the record
contains copies of the collective bargaining agreement indicating claims of discrimination may
be raised through the grievance process. Therefore, we concur with the Agency’s finding that
Complainant made a valid election to challenge his removal through the grievance process and
cannot file an EEO complaint on this same matter.

Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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

February 23, 2017
Date