Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.

Equal Employment Opportunity CommissionAug 28, 2014
0120132503 (E.E.O.C. Aug. 28, 2014)

0120132503

08-28-2014

Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.


Complainant,

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service

(Southwest Area),

Agency.

Appeal No. 0120132503

Hearing No. 540-2006-00078X

Agency No. 4G-870-0021-05

DECISION

On March 20, 2008, Complainant filed an appeal from the Agency's May 18, 2007 final order 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission REVERSES the Agency's final order.

ISSUES PRESENTED

The issues presented are: (1) whether Complainant's appeal was timely filed; (2) whether Complainant's claim was a collateral attack on the grievance process; (3) whether the EEOC Administrative Judge's (AJ) issuance of a decision without a hearing was appropriate; and (4) whether the Agency met its obligation to provide a legitimate, nondiscriminatory reason for transferring Complainant to a different duty station.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Modified Carrier (Limited Duty) at the Agency's Highland Station in Albuquerque, New Mexico. Prior to his assignment to Highland Station in May 2004, Complainant worked at Five Points Station. On November 15, 2005, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Mestizo Hispanic, Mexican American), color (Brown), disability, age (52), and reprisal for prior protected EEO activity when, in September 2005, the Highland Station Manager (M1) transferred him to Five Points Station.1

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an AJ. Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's April 9, 2007 motion for a decision without a hearing and issued a decision without a hearing on May 9, 2007. The AJ adopted the statement of allegedly undisputed material facts contained in the Agency's motion and the legal analysis contained in the Agency's motion. In its motion, the Agency had argued that it articulated a legitimate, nondiscriminatory reason for transferring Complainant; namely, M1 moved Complainant back to his bid location to serve the needs of the Agency. Moreover, the Agency had argued that Complainant failed to prove pretext. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.

CONTENTIONS ON APPEAL

Complainant did not submit a statement or brief in support of the appeal.

In opposition to Complainant's appeal, the Agency requested that the Commission affirm its final order. First, the Agency argued that Complainant's March 20, 2008 appeal was not timely filed. Specifically, the Agency asserted that Complainant only had until June 22, 2007 to file his appeal, assuming five days for his receipt of its May 18, 2007 final order in the mail. Second, citing Williams v. U.S. Postal Service, EEOC Appeal No. 0120070863 (March 15, 2006), the Agency argued that Complainant's claim was a collateral attack on the grievance process. Specifically, the Agency asserted that a November 25, 2005 grievance decision had concluded that Complainant's transfer was not discriminatory. Third, the Agency argued that the record satisfied the standards necessary for summary judgment, Complainant failed to establish a prima facie case on the alleged bases, M1 articulated a legitimate, nondiscriminatory reason for the transfer, and Complainant failed to establish pretext.

ANALYSIS AND FINDINGS

Standard of Review

In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final action adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also EEO MD-110, Ch. 9, � VI.B (providing that an AJ's "decision to issue a decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed de novo"). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See EEO MD-110, Ch. 9, � VI.A. (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").

Timeliness of Complainant's Appeal

A complainant's appeal of an agency's final action must be filed within 30 days of the receipt of the final action. See 29 C.F.R. � 1614.402(a). Where there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't of Def., EEOC Request No. 05920506 (Aug. 25, 1992)).

Upon review, we find that Complainant's March 20, 2008 appeal shall be deemed to have been timely filed. The Agency issued its final order on May 18, 2007. The record, however, contains no evidence regarding Complainant's receipt of the Agency's final order. Absent proof of Complainant's date of receipt, there is no basis for finding that the instant appeal was untimely filed. The Commission has previously found that an appeal was timely filed where the record contained insufficient evidence reflecting a complainant's receipt of the agency's final decision. See Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120131969 (May 20, 2014) (appeal was timely filed where the record did not indicate when a complainant received the final decision); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120132272 (Mar. 13, 2014) (appeal was timely filed where the agency did not offer any proof of when the final decision was delivered to complainant's address); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120140106 (Feb. 19, 2014) (appeal was timely filed where there was no evidence, other than a tracking printout indicating a delivery was made to a city and state, indicating that complainant actually received the final decision on a particular date). Accordingly, because the record contains no evidence that Complainant received the Agency's final order more than 30 days before his appeal, we find that Complainant's appeal was timely filed.

Collateral Attack

The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993).

Upon review, we find that Complainant's claim was not a collateral attack on the grievance process. As an initial matter, we note that the Agency did not procedurally dismiss the claim, but instead accepted it for investigation. On appeal, the Agency cited Williams for the proposition that Complainant's claim was a collateral attack on the grievance process. In Williams, the Commission held that the claim at issue - a decision by the union representative not to pursue a complainant's removal action to the arbitration stage of the grievance process - was a collateral attack on the grievance process. Unlike the claim in Williams, Complainant's claim did not challenge Agency actions which occurred during the grievance process. In his November 15, 2005 EEO complaint, Complainant alleged that the Agency discriminated against him when, in September 2005, M1 transferred him to Five Points Station. It is clear from Complainant's EEO complaint that he was challenging the transfer itself and not actions which occurred during the grievance process.2 Accordingly, because Complainant's claim involved the transfer and not actions which occurred during the grievance process, we find that it was not a collateral attack on the grievance process.

AJ's Issuance of a Decision Without a Hearing

We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.

If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the hearing context, this means that the AJ must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing.

Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).

Upon review, we find that the AJ's issuance of a decision without a hearing was appropriate because there is no genuine issue of material fact. However, we find that the AJ erred in finding in favor of the Agency, as explained below.

Disparate Treatment - Reprisal

To prevail in a disparate treatment claim absent direct evidence of discrimination, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). A complainant carries the initial burden of establishing a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Complainant's Prima Facie Case - Reprisal

To establish a prima facie case of disparate treatment on the basis of reprisal, Complainant generally must show that: (1) he engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). The nexus may be shown by evidence that the adverse treatment followed the protected activity within such a period of time and in such a manner that a reprisal motive is inferred. See Devereux v. U.S. Postal Serv., EEOC Request No. 05960869 (Apr. 24, 1997).

Upon review, we find that Complainant established a prima facie case of disparate treatment on the basis of reprisal. Specifically, the Agency's EEO iComplaints history for Complainant reflects that he participated in the EEO complaint process from May to August 2005. ROI, at Ex. 2. In addition, M1 averred that a union steward made her aware of Complainant's protected activity when she arrived at Highland Station. ROI, Aff. B, at 4. Further, the record reflects that M1 transferred Complainant to Five Points Station in September 2005. ROI, at Ex. 10. Moreover, we find that a span of approximately one month between Complainant's participation in the EEO complaint process and his transfer is close enough in time to establish a nexus. Accordingly, we find that Complainant established a prima facie case.

Agency's Legitimate, Nondiscriminatory Reason

Once a complainant has established a prima facie case, the burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 253. The Supreme Court has described this burden as being met "if the [agency's] evidence raises a genuine issue of fact as to whether it discriminated against the [complainant]," and that "[t]o accomplish this, the [agency] must clearly set forth, through the introduction of admissible evidence, the reasons for the [complainant's adverse treatment]." Id. at 254-55. Moreover, the agency must "frame the factual issue with sufficient clarity so that the [complainant] will have a full and fair opportunity to demonstrate pretext," with the adequacy of its evidence "evaluated by the extent to which it fulfill[ed] these functions." Id. at 255-56. The burden incumbent upon the agency to respond to a complainant's prima facie case with a legitimate, nondiscriminatory reason for its actions is a burden of production, not persuasion. Reeves, 530 U.S. at 142. While the agency's burden of production is not onerous, it must nevertheless provide a specific, clear, and individualized explanation for the treatment accorded a complainant. Lorenzo v. Dep't of Def., EEOC Request No. 05950931 (Nov. 6, 1997).

Upon review of the record, we find that the Agency failed to meet its burden of articulating a legitimate, nondiscriminatory reason. Specifically, we find that the Agency failed to provide a specific, clear, and individualized explanation for Complainant's transfer.

M1 was the only management official who provided an affidavit for the EEO investigation. When asked by the EEO Investigator to identify the regulations, policies, or contract provisions she relied on in transferring Complainant, M1 responded: "I will send you copies of the job offers." ROI, Aff. B, at 4. The record contains a modified job offer assigning Complainant to work at Five Points Station. ROI, at Ex. 7. The modified job offer, however, does not explain why Complainant was transferred from Highland Station to Five Points Station. Id. When asked by the EEO Investigator to provide specific details in response to Complainant's claim that he was discriminated against when he was transferred to another duty station, M1 responded: "Hispanic, Brown, 53, disability, retaliation and Mexican American had nothing to do with the transfer in work location." ROI, Aff. B, at 4. At no point in her affidavit, however, did M1 explain why she transferred Complainant.

In its motion for a decision without a hearing, which the AJ adopted, the Agency stated M1 moved Complainant back to his bid location "to serve the needs of the Postal Service." In support of that statement, the Agency cited the November 25, 2005 grievance decision. The grievance decision characterized management's contentions as follows: "Management contends that no violation occurred. The grievant was reassigned to his original station and assigned duties within his medical restrictions." ROI, at Ex. 10. At no point in the grievance decision is there any specific, clear, and individualized explanation for why Complainant was transferred. Regarding the Agency's assertion that Complainant was transferred "to serve the needs of the Postal Service," the Commission has previously found that a blanket statement about the needs of the service was insufficient to satisfy the burden of production. See Brooks-Coleman & Brooks v. U.S. Postal Serv., EEOC Request Nos. 05930625 & 05930681 (May 19, 1994); see also Humphrey v. U.S. Postal Serv., EEOC Appeal No. 0120072410 (July 5, 2007) (statement that the denial of a relief worker was due to the needs of the service, without providing more information, was insufficient to satisfy the burden of production).

Based on the above, we find that the Agency failed to articulate a specific, clear, and individualized explanation for Complainant's transfer and, consequently, Complainant was denied a fair opportunity to demonstrate pretext. Thus, the Agency failed to rebut the inference of discrimination, which was created when Complainant established a prima facie case of reprisal discrimination, by articulating a legitimate, nondiscriminatory reason for its actions. Accordingly, we find that the Agency discriminated against Complainant on the basis of reprisal for prior protected EEO activity when it transferred him to Five Points Station.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final order and find reprisal discrimination.3 The Agency will comply with the Order below.

ORDER

Unless otherwise indicated, the Agency is ordered to take the following remedial actions within one hundred and twenty (120) calendar days of the date this decision becomes final:

1. The Agency shall offer Complainant a transfer back to Highland Station;

2. The Agency shall conduct a supplemental investigation on compensatory damages, including providing Complainant an opportunity to submit evidence of pecuniary and non-pecuniary damages. For guidance on what evidence is necessary to prove pecuniary and non-pecuniary damages, the parties are directed to EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under � 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at eeoc.gov). The Agency shall complete the investigation and issue a final decision appealable to the Commission determining the appropriate amount of damages.

3. The Agency shall provide eight (8) hours of EEO training to M1 regarding her responsibilities under EEO laws, with a focus on the anti-retaliation provisions.

4. The Agency shall consider taking appropriate disciplinary action against M1. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If M1 has left the Agency's employ, the Agency shall furnish documentation of her departure date.

The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.

POSTING ORDER (G0610)

The Agency is ordered to post at its Highland Station facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period.

ATTORNEY'S FEES (H0610)

If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.

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 (M0610)

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 9-18 (November 9, 1999). 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 (Z0610)

If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney

with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

___8/28/14_______________

Date

1 Complainant also alleged that the Agency breached a July 28, 2005 grievance settlement agreement when it did not restore him to a Level 2 Carrier position. On January 6, 2006, the Agency dismissed this allegation. Complainant did not specifically raise the dismissal on appeal. Although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion not to do so and may focus only on the issues specifically raised on appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9, � IV.A (Nov. 9, 1999). Accordingly, we will not address this issue in our decision.

2 We note that Complainant also filed a grievance involving the transfer and that the grievance was resolved in a November 25, 2005 decision. However, with respect to agencies that are not covered by 5 U.S.C. � 7121(d), such as the U.S. Postal Service, an aggrieved individual may file a complaint pursuant to 29 C.F.R. Part 1614 and also a grievance pursuant to a collective bargaining agreement involving the same claim. See EEO MD-110, Ch. 4, � III.B.1.

3 Because we found that the Agency discriminated against Complainant on the basis of reprisal, we need not address any other basis, as Complainant would not be entitled to any additional relief.

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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