Victoria S.,1 Complainant,v.R. Alexander Acosta, Secretary, Department of Labor, Agency.

Equal Employment Opportunity CommissionDec 5, 2017
0120172754 (E.E.O.C. Dec. 5, 2017)

0120172754

12-05-2017

Victoria S.,1 Complainant, v. R. Alexander Acosta, Secretary, Department of Labor, Agency.


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Victoria S.,1

Complainant,

v.

R. Alexander Acosta,

Secretary,

Department of Labor,

Agency.

Appeal No. 0120172754

Agency No. 17-11-045

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated July 11, 2017, dismissing her 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

At the time of events giving rise to this complaint, Complainant worked as a GS-11 Program Specialist at the Agency's Wage and Hour Division in Washington, D.C.

The record indicated that she resigned in lieu of termination from her position for misuse of a government credit card. Complainant filed a grievance on March 22, 2012. As a result of an arbitrator's February 14, 2013 decision, her involuntary resignation was converted to a suspension without pay and that she was returned to her previous position at the GS-9 level.

On November 15, 2016, Complainant contacted the EEO counselor alleging discrimination. The matter could not be resolved informally. On February 6, 2017, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American) and color (Black) when:

1. In February 2013, she was demoted and reclassified to a non-career ladder position for the misuse of a government sponsored credit card.

2. Complainant was treated differently than other Agency employees who have been charged with misuse of their government sponsored credit cards. Complainant noted that one white employee was reinstated with a reprimand with a repayment plan and another white employee was given a 10-day suspension which was to be held in abeyance for two years and without additional conduct charges the suspension would be removed.

The Agency dismissed the complaint on several grounds. First, the Agency dismissed the complaint, pursuant to 29 C.F.R � 1614.107(a)(4), because she had already raised the termination action through the negotiated grievance procedure. The Agency also dismissed the matter pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact. The Agency noted that Complainant filed her grievance in March 2012 and was reinstated by the arbitrator's decision in February 2013. Subsequently, in November 2016, Complainant contacted the EEO Counselor regarding alleged discrimination. The Agency found that Complainant's contact was well beyond the 45-day time limit. Finally, the Agency dismissed the complaint pursuant to 29 C.F.R � 1614.107(a)(1) for failure to state a claim. The Agency held that Complainant was using the EEO complaint process to raise her claims of dissatisfaction with the arbitrator's decision.

This appeal followed. On appeal, Complainant asserted that the Agency's dismissal was not appropriate. She argued that the Agency did not grasp the legal distinction between the grievance filed to challenge the discrimination inherit in her reinstatement. She noted that the termination claim did not allege discrimination. The termination had been litigated before an arbitrator who ordered Complainant to be reinstated at the GS-9 level. She indicated that she did not challenge the reinstatement to the GS-9 level until she learned later that three other employees were also removed and returned through arbitration to their positions without impact to their career ladder status. She claimed that she did not learn about the difference in treatment until October 25, 2016. Therefore, she argued that her contact was made within the 45-day time limit and that the Agency's final decision should be reversed and the matter remanded for investigation.

ANALYSIS AND FINDINGS

Negotiated Grievance Procedure - Claim (1)

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. EEOC Regulation 29 C.F.R � 1614.107(a)(4) provides that an agency shall dismiss an entire complaint where the complainant has raised the matter in a negotiated grievance procedure that permits allegations of discrimination.

The record indicates that Complainant agrees that she raised the claim regarding the proposed termination through the negotiated grievance procedure. Further, the Agency provided evidence that the grievance procedure permits claims of discrimination and an election to raise the matter under either part 1614 or the grievance procedure, but not both. While Complainant notes she did not allege discrimination in her grievance, this does not defeat her election of the grievance forum. 29 C.F.R. � 1614.301(a). Upon review, we find the Agency correctly dismissed the claim (1) on the grounds that Complainant elected to file a grievance on the same matter.

Failure to State a Claim - Claim (2)

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age, disabling condition, genetic information, or reprisal. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).

A review of Complainant's formal complaint and argument on appeal, clearly Complainant has alleged discrimination with respect to the difference of treatment by the arbitrator in other cases of termination for misuse of government credit cards. Complainant attempts to link the difference in treatment to the Agency's disparate treatment. However, the action alleged in claim (2) is the arbitrator's decision. 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 Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Service, EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Service, EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to have raised her challenges to actions which occurred during the arbitration proceeding was at that proceeding itself. It is inappropriate to now attempt to use the EEO process to collaterally attack actions which occurred during the arbitration process. As such, we find that the Agency's dismissal of claim (2) was appropriate.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.2

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

December 5, 2017

__________________

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.

2 Although the Agency in its final decision dismissed the complaint on the alternative grounds due to untimely EEO counselor contact, we need not address such since its dismissal is affirmed pursuant to 29 C.F.R. � 1614.107(a)(1) and (4).

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