Complainant,v.Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Sep 18, 2015

01-2013-3202-0500 (E.E.O.C. Sep. 18, 2015)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 , Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0120133202 Hearing No. 550-2012-00305X Agency No. SF-12-0162-SSA DECISION Complainant filed an appeal with this Commission from the Agency's final order dated August 5, 2013, dismissing his 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Benefit Authorizer at the Agency’s Western Program Service Center located in Richmond, California. On February 1, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination in reprisal for prior protected EEO activity when: On October 31, 2011, Complainant received a performance rating which he believed to be undeserved. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. On July 9, 2013, the AJ dismissed Complainant’s complaint on the ground that he had elected to file a grievance on his performance appraisal under the applicable collective bargaining 0120133202 2 agreement (CBA) between the Agency and the union. The AJ found the CBA permitted the acceptance of grievances which alleged discrimination and that Complainant had filed a timely grievance in connection with his performance appraisal prior to filing an EEO complaint on the same matter. The Agency issued a final order on August 5, 2013. The Agency’s final order fully implemented the AJ’s decision. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. §1614.301 requires that where 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 allegations of discrimination to be raised in the negotiated grievance procedure, an election must be made to proceed under either the negotiated grievance procedure or the EEO complaint procedure (part 1614). Under the regulation, an election is indicated by the filing of a written complaint or timely written grievance, whichever is done first. It also provides that 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 a complaint on the same matter under 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. On November 17, 2011, Complainant filed a grievance alleging that he was not rated fairly on the October 31, 2011 performance appraisal. Subsequently, on February 1, 2012, Complainant filed a formal EEO complaint regarding the same performance appraisal. Complainant is employed by an agency subject to 5 U.S.C. § 7121(d), and the record reflects that he is covered by a collective bargaining agreement that permits allegations of discrimination to be raised in the negotiated grievance procedure. While Complainant notes he did not allege discrimination or reprisal in his grievance, this does not defeat his election of the grievance forum. 29 C.F.R. § 1614.301(a). Moreover, we note Complainant states that his grievance was subsequently withdrawn. However, the Commission has held that the withdrawal of a grievance does not negate the election of the forum. Marsh v. Dept. of the Treasury, EEOC Request No. 05910383 (1991). Upon review, we find the Agency correctly dismissed the complaint on the grounds that Complainant elected to file a grievance on the same matter. CONCLUSION Accordingly, the Agency’s final order dismissing Complainant’s complaint is AFFIRMED. 0120133202 3 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 (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. 0120133202 4 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 Complainants 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 September 18, 2015 Date