EEOC Appeal No. 0120152079
10-21-2015
Ciera B. v. Dep't of Veterans Affairs
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ciera B.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120152079
Agency No. 200305492015101777
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (FAD) dated May 1, 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, Complainant worked as a Human Resources Assistant at the Agency's Medical Center facility in Dallas, Texas.
On March 13, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), sex (female), age (50), and reprisal for prior protected EEO activity when:
1. on October 1, 2014, Complainant was placed on administrative leave pending the outcome of an investigation concerning alleged misconduct;
2. on October 2, 2014, Complainant was issued a proposed 1-day suspension notice for accessing sensitive information without an official need;
3. on October 30, 2014, Complainant was issued a notice of proposed demotion for accessing sensitive information without an official need and for placing inaccurate documentation in government records;
4. on December 4, 2014, Complainant was issued a notice of a 5-day suspension in lieu of the proposed demotion, to be served from January 12-16, 2015;
5. on December 4, 2014, Complainant received notice of reassignment to a Program Support Assistant, GS-6 position in Fisher House section;
6. on January 27, 2015, Complainant received notice that her effective 5-day suspension dates were changed to March 2-6, 2015;
7. on January 30, 2015 the Interim Human Resources Manager (IHR) called complainant about signing for the disciplinary action (Suspension and Reassignment);
8. on February 4, 2015, IHR and a Human Resources Supervisor (HRM), came to Complainant's duty assignment area and attempted to force her to sign for receipt of her disciplinary notice (Suspension and Reassignment);
9. on February 6, 2015, Complainant received an "Excellent" grade in her performance appraisal rating for FY 2014 instead of the "Outstanding" rating she believed she was entitled to;
10. on March 12 2015, Complainant was issued the "final" effective dates of her 5-day suspension (March 30 to April 3, 2015) and reassignment (effective April 6, 2015);
11. on March 11, 2015, IHR and HRM came to Complainant's duty assignment area and attempted to force her sign for receipt of her disciplinary notice (Suspension and Reassignment); and
12. on April 3, 2015, Complainant was issued "Direct Order" notice to report to Human Resources to be in compliance with the third step grievance decision.
The Agency dismissed the claims, pursuant to 29 C.F.R. � 1614.107(a)(4), on the grounds that Complainant had raised these matters in a negotiated grievance procedure. The instant appeal by Complainant followed.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(4) provides that an agency may dismiss a complaint where the complainant has raised the matter in a negotiated grievance procedure that permits claims of discrimination and � 1614.301 indicates that the complainant has elected to pursue the non-EEO process. The Agency found that Complainant's "EEO complaint was also the subject matter of Union grievances. . . . A third step union grievance was filed on her behalf . . . [Complainant] was in agreement with the filing of the grievance as she participated in the grievance process." FAD, pp. 3-4. The Agency concluded that Complainant raised the matters in a negotiated grievance procedure and that the claims should therefore be dismissed.
The record in the instant case demonstrates that the above-referenced grievance was filed by the union pursuant to Article 43 of a negotiated agreement, which authorizes the filing of grievances by the union, and describes a procedure for such grievances. There is no evidence that complainant was involved in the filing of the grievance in this case, which appears to have been filed independently of Complainant. As such, the Agency has not established that Complainant made a valid election to pursue the grievance process rather than the EEO complaint process. See Rescio v. Department of Transportation, EEOC Appeal No. 01975288 (September 8, 1998); McLeod v. Department of Justice, EEOC Appeal No. 0120092979 (March 14, 2011). While Complainant may have participated in the union's grievance, we do not find such participation sufficient to meet the definition of "elect[ing] to pursue the non-EEO process" referred to in �� 1614.107 and 301. We note in this regard that � 301 states "an election to proceed under a negotiated grievance procedure is indicated by the filing of a timely written grievance." The language does not state that merely participating in a grievance filed by others, including the union filing on Complainant's behalf, as opposed to Complainant actively filing the grievance herself, constitutes an "election" under �107(a)(4).
CONCLUSION
Accordingly, we REVERSE the agency's dismissal of the complaint and REMAND the complaint to the Agency for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced 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 Complainant. 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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, P.O. Box 77960, Washington, DC 20013. 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).
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. 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
October 21, 2015
__________________
Date
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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