Agency.

Equal Employment Opportunity Commission

Nov 20, 2018

0220170008 (E.E.O.C. Nov. 20, 2018)

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

Gail S.,1
Grievant,

v.

Matthew G. Whitaker,
Acting Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.

Appeal No. 0220170008

Agency No. 0-AR-5242

DECISION

Grievant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) from an April 5, 2017 decision of the Federal Labor Relations Authority (FLRA)
dismissing her grievance alleging 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, Grievant worked at the Agency’s Federal
Correctional Complex facility in Petersburg, Virginia.

Grievant filed a grievance using the Agency’s negotiated grievance process alleging that she was
subjected to discrimination on the bases of race and reprisal for prior protected EEO activity
under Title VII of the Civil Rights Act of 1964 when, on March 24, 2016, she requested
compensatory time for work-related travel. She alleged that the next day, her supervisor asked
her to provide her flight itinerary to support her request. On March 31, 2016, Grievant filed the
formal grievance. The record indicated that, on April 18, 2016, Grievant’s Time and Attendance
(T&A) records were updated to show her approved compensatory time request for eleven (11)
hours. On May 4, 2016, the Union invoked arbitration on the grievance filed.

1 This case has been randomly assigned a pseudonym which will replace Grievant’s name when
the decision is published to non-parties and the Commission’s website.
0220170008

2
The Arbitrator issued a decision finding no discrimination. Specifically, the Arbitrator found
that there was no evidence that the Agency discriminated or retaliated against Grievant. He also
found that the grievance was moot because, after the grievance was filed, the Agency granted the
Grievant's request for compensatory time. Subsequently, an appeal was filed with the Federal
Labor Relations Authority (FLRA). On April 5, 2017, the FLRA issued a decision denying the
Union’s appeal. The FLRA determined that Union failed to show that the Arbitrator’s decision
was contrary to the law. The FLRA denied the Union’s exceptions.

This appeal followed. Grievant argued that the matter was not moot. She also alleged that the
Arbitrator failed to see a causal connection between her protected activity and the request for the
itinerary. Finally, Grievant argued that the Arbitrator erred in issuing a decision without a
hearing.

EEOC Regulation 29 C.F.R. 1614.401(d) provides that a grievant may appeal to the Commission
from a final decision of the agency, an arbitrator, or the Federal Labor Relations Authority on a
grievance when an issue of employment discrimination was raised in a negotiated grievance
procedure that permits such issues to be raised.

As set forth above, the FLRA found that under the grievance procedure, the grievance was moot.
The Commission has consistently found that it does not have jurisdiction to review procedural
determinations, like the one at issue by the FLRA, solely related to the grievance process and the
collective bargaining agreement. Reese v. Dep’t of Agriculture, EEOC Appeal No. 02970023
(October 3, 2000); Johnson v. Equal Employment Opp. Comm., EEOC Appeal No. 02900040
(March 20, 1991).

Accordingly, Grievant’s appeal is DISMISSED.

0220170008

3
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.

0220170008

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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

November 20, 2018
Date