Victoria B. Freeney, a/k/a Margorie L.,1 Complainant,v.Robert McDonald, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jan 25, 2017

0520170034 (E.E.O.C. Jan. 25, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Victoria B. Freeney, a/k/a
Margorie L.,1
Complainant,

v.

Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.

Request No. 0520170034

Appeal No. 0120162530

Agency No. 200I-0557-2016102626

DECISION ON REQUEST FOR RECONSIDERATION

The Agency timely requested reconsideration of the decision in EEOC Appeal No.
0120162530 (October 13, 2016). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision where the
requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c).

Complainant unsuccessfully applied for a Social Program Coordinator position and informally
learned of the Agency’s decision on December 3, 2015. On March 11, 2016, the President of
the Union Local, acting on Complainant’s behalf, filed a step II grievance. On April 26, 2016,
the Union President filed a step III grievance, again on Complainant’s behalf. On May 12,
2016, while the step III grievance was in progress, Complainant filed a formal EEO complaint
in connection with the same nonselection.

The Agency dismissed the complaint on the grounds that Complainant had filed a negotiated
grievance on the same matter nearly three weeks before filing her EEO Complaint. In our

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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previous decision, we reversed the Agency’s dismissal and remanded the complaint because the
evidentiary record did not include a copy of the collective bargaining agreement that the
Agency referenced in its final decision. We held that the Agency had the burden of proving
that the negotiated grievance procedure allowed for the processing of employment
discrimination claims, but that it failed to do so. We ordered the Agency to complete its
investigation and issue Complainant a copy of the investigative report within 150 calendar days
of the date that our previous decision became final.

In its request for reconsideration, the Agency initially argues that the previous decision
constituted an erroneous interpretation of law and material fact, pointing out that the pertinent
provisions of the collective bargaining agreement authorize claims of employment
discrimination to be processed in accordance with the negotiated grievance procedures set forth
in that agreement. We disagree. While it is true that the bargaining agreement allows for
discrimination claims to be processed as negotiated grievances, the Commission did not have
this information when we issued our previous decision. The Agency has the burden of proof to
support its dismissal of a complaint on procedural grounds. Linn A. v. Social Security
Administration, EEOC Appeal No. 0120161923 (Aug. 19, 2016). The previous decision thus
ruled correctly.

The Agency also argues that the previous decision will have a substantial impact upon its
policies, practices, and operations by undermining its ability to discharge its functions
concerning acceptance and dismissals of complaints. We likewise disagree. All that the
Agency needs to do to avoid future outcomes like the one now before us is to justify its
procedural dismissal with supporting evidence, which it did not do when it had the
opportunity.

Therefore, after reviewing the previous decision and the entire record, the Commission finds
that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of
the Commission to deny the request. The decision in EEOC Appeal No. 0120161072 remains
the Commission's decision. There is no further right of administrative appeal on the decision
of the Commission on this request. The Agency shall comply with the Order as set forth
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.

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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.

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
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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. H signature
Carlton M. Hadden, Director
Office of Federal Operations

January 25, 2017
Date