EEOC Appeal No. 0120172908
11-30-2017
Jarvis R. v. Soc. Sec. Admin.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jarvis R,1
Complainant,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120172908
Agency No. NY-17-0500-SSA
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated August 2, 2017, dismissing a formal 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.
BACKGROUND
During the period at issue, Complainant worked as a Claims Specialist at the Agency's New Utrecht Field Office 137 in New York City, New York.
On June 8, 2017, Complainant filed a formal complaint. Complainant claimed discrimination based on race (Hispanic), national origin (Puerto Rican), and sex (male) when:
1. Beginning in December 2015, and ongoing, another Agency employee subjected Complainant to sexual harassment with respect to his working conditions; and
2. On December 20, 2016, Agency management subjected Complainant to disparate treatment by reassigning him to Social Security Insurance (SSI) and breakdown workload.
The Agency dismissed both claims under 29 C.F.R.� � 1614.107(a)(4), finding that Complainant had elected to pursue the matter under a negotiated grievance procedure in accordance with the Collective Bargaining Agreement (CBA) which covers Complainant.
The instant appeal followed. On appeal, through his representative, Complainant contends that dismissal was improper because the representative sent an email confirming withdrawal of Complainant's union grievance procedure prior to the filing of the formal complaint.
ANALYSIS AND FINDINGS
If a complainant raised the matters in a negotiated grievance, then an agency subject may dismiss those claims a subsequent EEO complaint. See 29 C.F.R. � 1614.107(a)(4). The CBA must allow employees to raise matters of alleged discrimination under the 29 C.F.R. Part 1614 EEO process or under the negotiated grievance procedure, but not both. An election to proceed under a negotiated grievance procedure is made by the filing of a written grievance irrespective of whether the Agency had informed the individual of the need to elect or whether the grievance has actually raised an issue of discrimination. See 29 C.F.R. � 1614.301(a). A complainant may elect the EEO process by filing a formal EEO complaint prior to filing a timely written grievance. Withdrawal of a prior grievance does not rescind a Complainant's decision with respect to electing the grievance procedure in lieu of the EEO process. Hall v. Soc. Sec. Admin., EEOC Appeal No. 01A54110 (Sep. 22, 2005).
In this case however, the record does not contain a copy of the CBA which would confirm that the negotiated grievance procedure permits claims of discrimination. While the Agency's final decision did cite what it believed to be the relevant provisions in the CBA, it nevertheless failed to include in the record a copy of the CBA for the Commission's review.2 We therefore cannot sufficiently determine whether the CBA permits election of a grievance procedure for claims of discrimination instead of the EEO complaint process. Based upon the record before this Commission, the Agency's decision dismissing Complainant's complaint under 29 C.F.R. � 1614.107(a)(4) was improper. See Spellman v. Dep't of Homeland Sec., EEOC Appeal No. 0120103173 (Jan. 4, 2013) citing Marshall v. Dep't of the Navy, EEOC Request No. 05910685 (Sep. 6, 1991).
CONCLUSION
Accordingly, EEOC REVERSES the Agency's final decision and REMANDS the formal complaint to the Agency for further processing consistent with the ORDER below.
ORDER (E1016)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. 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 was issued, 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to Complainant. If the Agency does not comply with the Commission's order, Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). 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, 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 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 (M0617)
The Commission may, in its discretion, reconsider the decision in this case if 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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).
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.
FOR THE COMMISSION:
Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
November 30, 2017
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.
2 We also note that the Agency's record lacks copies of the EEO Counselor's report and its notice of Complainant's right to file a formal EEO complaint.
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