0120181606
08-15-2018
Jon H,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Finance & Accounting Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jon H,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense
(Defense Finance & Accounting Service),
Agency.
Appeal No. 0120181606
Agency No. DFAS000162018
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated March 14, 2018, dismissing his complaint of unlawful employment discrimination in violation of 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Accountant, GS-510-11, at the Agency's Accounting Operations facility in Indianapolis, Indiana.
On February 15, 2018, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability and age when he was issued a 14-day suspension, effective October 30, 2017. In his formal complaint, Complainant also raises numerous incidents of harassment occurring between April 7, 2017 and September 18, 2017.
The Agency dismissed the complaint because Complainant raised his suspension in the negotiated grievance procedure that allows for claims of discrimination to be raised. The Agency also dismissed the complaint for failing to timely raise the matters with an EEO counselor. The instant appeal followed. In his appeal, Complainant acknowledges that the grievance procedure allows for claims of discrimination to be raised, but states he purposely bifurcated any discrimination claims from his grievance.
ANALYSIS AND FINDINGS
Suspension
EEOC Regulation 29 C.F.R. � 1614.301(a) states that when 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 claims of discrimination to be raised in a negotiated grievance procedure, a person wishing to file a complaint or grievance on a matter of alleged employment discrimination must elect to raise the matter under either part 1614 or the negotiated grievance procedure, but not both. 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 this 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.
Complainant does not dispute that he could raise his discrimination claims under the grievance procedure, but argues that he did not do so, seeking to have them addressed in the EEO process. In other words, while he filed a grievance on the suspension, he did not raise discrimination therein. However, the issue is not whether he raised discrimination claims in his grievance, but whether he could have raised such claims. In the instant case, it is clear he could have done so. As such, his claim regarding the suspension was properly dismissed.
Harassment
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action.
The record discloses that the alleged discriminatory event occurred on September 18, 2017, but Complainant did not initiate contact with an EEO Counselor until December 11, 2017, which is beyond the forty-five (45) day limitation period. We also note that it is not clear from the record that Complainant raised this claim with the EEO counselor. The EEO counselor's report only references the suspension. Finally, the record contains a copy of a settlement agreement wherein Complainant agreed not to seek or receive compensation with respect to the complaint at issue "concerning the issues raised in the above complaint or concerning any issues arising from his employment with the Agency prior to the effective date of this agreement." That settlement agreement was signed on July 20, 2017, and any claims raised prior to that were covered by that provision. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. 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 (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 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
August 15, 2018
__________________
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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