0220160002
02-28-2017
Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lael G.,1
Grievant,
v.
John F. Kelly,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0220160002
Agency No. HS-CBP-23867-2015
DECISION
Grievant filed a timely appeal with this Commission from the Agency's decision dated September 24, 2015, dismissing her 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Grievant worked as a Customs Border Patrol Technician at the Agency's New York Field Office, Newark Port of Entry facility in Newark, New Jersey.
On August 5, 2018, Grievant filed a grievance alleging that the Agency subjected her to discrimination on the bases of race (African-American), sex (female), and age (63) when:
1. on March 20, 2015, Grievant learned that she was not selected for the position of Entry Specialist, GS-1894-09/11, under Job Opportunity Announcement (JOA) number MHCDE-12522581-AN;
2. on March 20, 2015, she learned that she was not selected for the position of Entry Specialist, GS-1894-09/11, under JOA number: MHCMP-1256342-MLM; and
3. on March 20, 2015, she learned that she was not selected for the position of Entry Specialis4 GS-1894-07, under JOA number: MHCMP-1256637-MLM
The Agency dismissed the grievance, citing 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. As to claim (1), the certificate contained the names of two veterans and the selecting official signed the certificate selecting one of the veteran applicants. The Agency determined that Grievant failed to apply for the position listed in claim (1) and did not assert that she was discouraged from applying for that position. As for claims (2) and (3), the Agency noted that no selections were made, so concluded Grievant could not show that she was harmed by these claims. Therefore, the Agency dismissed the grievance. We note that the Agency provided Grievant with appeal rights to the Commission.
This appeal followed.
ANALYSIS AND FINDINGS
Generally speaking, EEOC regulation 29 C.F.R. � 1614.401(d) provides that a grievant may appeal to the Commission from a final decision of the Agency, the arbitrator, or the Federal Labor Relations Authority (FLRA) on a grievance when an issue of employment discrimination was raised in a negotiated grievance procedure that permits such issues to be raised. The Commission will only review that portion of the decision which pertains to Grievant's employment discrimination claim, as it does not have jurisdiction over any alleged violations of the terms of a collective bargaining agreement. See 29 C.F.R. � 1614.301(a). Here, however, we note the Agency did not dismiss the matter pursuant to the collective bargaining agreement's procedures governing grievances. The Agency dismissed the matter pursuant to the 29 C.F.R. � 1614.107(a)(1) which is under the Commission's jurisdiction. As such, we will review the Agency's decision. See Grievants v. Dep't. of the Navy, EEOC Appeal Nos. 0220130004, 0220130005, 0220130006, 0220130007, 0220130008, and 0220130009 (May 15, 2014) (reviewing the Agency's dismissal pursuant to 29 C.F.R. � 1614.107(a)(2)).
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
As to claim (1), the Agency asserted that Grievant did not apply. Grievant stated that she applied for the position listed and had been interviewed. We find that the Agency has not shown that Grievant did not in fact apply for position (1). Thus, the Agency has failed to substantiate the basis for its dismissal decision. See Marshall v. Dep't of the Navy, EEOC Request No. 05910685 (Sept. 6, 1991).
Further, in claims (2) and (3), the Agency indicated that no one was selected for these vacancies. After a review of the final decision, the Commission finds that the Agency has addressed the merits of Grievant's complaint without a proper investigation as required by the regulations. We find that the Agency's articulated reason for the action in dispute - that the positions were not filled or that the selectee was a veteran -- goes to the merits of Grievant's complaint, and is irrelevant to the procedural issue of whether she has stated a justiciable claim under Title VII. See Osborne v. Dep't of the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. U.S. Postal Serv., EEOC Request No. 05930220 (Aug. 12, 1993); Ferrazzoli v. U.S. Postal Serv., EEOC Request No. 05910642 (Aug. 15, 1991). Therefore, we find that the Agency's dismissal was not appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency's dismissal decision and REMAND the grievance for further processing in accordance with the Order below.
ORDER
The Agency shall complete an investigation of the grievance within sixty (60) days of the date this decision is issued. The Agency shall further compile an evidentiary record regarding Grievant's claims, including copies of all the evidence accumulated during the various stages of the grievance (i.e. affidavits, documents, etc.), a copy of the report of investigation, all grievance decisions, and any other relevant information or documentation regarding Grievant's claims. The Agency shall provide a copy of all requested documentation to Grievant and her representative(s), if any.
Within thirty (30) calendar days of the completion of the investigation, the Agency shall issue a third-step grievance decision that expressly addresses Grievant's discrimination claims, and provides Grievant with the right to appeal the Agency's grievance decision to the Commission pursuant to 29 C.F.R. � 1614.401(d).
The Agency shall provide documentary confirmation of the completion of these actions to the Compliance Officer, as reference below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Grievant. If the Agency does not comply with the Commission's order, the Grievant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Grievant 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 Grievant 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 Grievant 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
The Commission may, in its discretion, reconsider the decision in this case if the Grievant or the Agency submits a written request containing arguments or evidence which tends 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 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).
GRIEVANT'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. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Grievant'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 28, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Grievant's name when the decision is published to non-parties and the Commission's website.
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