0220150003
03-09-2017
Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Clifford L.,1
Grievant,
v.
Robert M. Speer,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0220150003
DECISION
On October 31, 2014, Grievant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's August 27, 2014, final decision concerning his equal employment opportunity (EEO) complaint alleging 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, Grievant worked at the Agency's Contracting Command in Redstone Arsenal, Alabama.
On September 4, 2013, Grievant filed a third-step grievance alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On August 13, 2013, his supervisor used the e-mail system as a "time stamp" to track the time Grievant was away from his desk.
2. He did not receive his performance plan within 30 days of the beginning of the rating period and he did not receive quarterly performance counseling in accordance with the Union agreement.
3. He was not treat him with fairness and dignity in the workplace and the Supervisor "directly violated" Article 9 of the collective bargaining agreement when he sent Grievant an e-mail on September 17, 2013, refusing to grant him additional time to meet with his Union representative to prepare his grievance.
The Agency issued its grievance decision. The decision concluded that Grievant failed to prove that the Agency subjected him to unlawful retaliation as alleged. As to claim (1), the Agency found that the Supervisor sent Grievant an e-mail as a reminder to a meeting. In that e-mail, he made a comment that he walked by the Grievant's desk, but he was not there. The Agency found that the comment by the Supervisor was merely an observation rather than an attempt to monitor Grievant and his breaks. As such, the Agency found a legitimate reason for this disputed action.
As to claim (2), the Agency determined that although Grievant did not receive his performance plan within 30 days or quarterly counseling sessions, he did receive a mid-point counseling, as well as regular written communication from the Supervisor concerning his work performance. The Agency determined that these communications were sufficient to put Grievant on notice of observed concerns with his work performance. Therefore, the Agency held that management addressed performance issues despite failing to follow contract rules concerning the timing of the performance-related communications.
Finally, as to claim (3), the Agency found no evidence that the Senior Rater intentionally singled Grievant out or intimidated him as he asserted. Moreover, the issue of time to meet with his union representative to prepare a grievance was a matter of contract interpretation, rather than retaliation.
As to Grievant's claim of unlawful retaliation, the Agency noted that Grievant had filed an EEO complaint against his prior supervisor, not the Supervisor at issue in the instant grievance. The Supervisor denied that he was aware of that prior EEO activity. Grievant argued, without supporting evidence, that the prior supervisor made his current supervisor aware of his EEO complaint.
This appeal followed.
ANALYSIS AND FINDINGS
The Commission has jurisdiction over appeals from grievance decisions in limited circumstances. 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, an 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, but requires the complainant to proceed on the discrimination claims under either the grievance process or the EEO process, but not both. In these circumstances, the Commission will only review that portion of the decision which pertains to the Grievant's employment discrimination claim, as it does not have jurisdiction over any alleged violations of a collective bargaining agreement. See 29 C.F.R. � 1614.301(a). Here, Grievant alleged, at least in part, that the Agency violated the terms of the collective bargaining agreement when he was subjected to unlawful discrimination. Accordingly, the Commission properly has jurisdiction over Grievant's appeal.
Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Grievant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1973). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Upon review of the record, we find that Grievant failed to establish a prima facie case by failing to provide any evidence or facts that give rise to an inference of unlawful retaliation. Moreover, even if he had, the Agency has articulated legitimate, non-retaliatory reasons for the actions at issue, which Grievant has not proven, by a preponderance of the evidence, were a pretext designed to mask the true retaliatory motivations. In reaching this conclusion, we again note that we are only reviewing determinations concerning Title VII claims, and not those concerning an interpretation of or Grievant's rights under the collective bargaining agreement. Thus, for example, we are not reviewing Grievant's claim that management's alleged denial of time to meet with his union representative to prepare his grievance violated the terms of the collective bargaining agreement.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Agency's Step 3 Grievance decision finding no unlawful retaliation under Title VII has been established is AFFIRMED.
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 (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 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
March 9, 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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