Agency.

Equal Employment Opportunity Commission

Nov 16, 2018

0220170002 (E.E.O.C. Nov. 16, 2018)

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

Zachary K.,1
Grievant,

v.

Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.

Appeal No. 0220170002

Agency No. GREV201602127

DECISION

Grievant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s decision entitled Grievance Decision, Step 2 dated December
23, 2016, concerning his union 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., and the Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d) et seq.

At the time of events giving rise to this complaint, Grievant worked as an I-Band level Attorney
at the Agency’s National Enforcement Practice located in the Mike Monroney Aeronautical
Center in Oklahoma City, Oklahoma.

On August 31, 2016, Grievant filed a formal complaint alleging that the Agency subjected him to
discrimination on the basis of sex (male) when, he was denied a promotion to the J band on July
8, 2016.

The Agency issued its Step 1 grievance decision on December 1, 2016, denying the grievance on
the basis that it was untimely filed. In the alternative, the Agency determined that Grievant had
also filed an appeal on the same matter with the Merit Systems Protection Board (MSPB), which
precluded him from also pursuing the instant grievance.

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.
0220170002

2
Finally, the Agency found that Grievant was unclear as to the basis for his allegations and that he
failed to provide evidence and explanations giving rise to his alleged violation of Title VII.

Grievant, with the assistance of his union, pursued a Step 2 grievance. On December 23, 2016,
the Agency issued its Step 2 decision, again denying the grievance. The decision reaffirmed the
determination that the Grievant’s grievance was filed in an untimely manner. The Step 2 decision
also found that Grievant raised the same matter before the MSPB and that the grievance should
be denied. Therefore, the Agency Step 2 decision reaffirmed the Step 1 decision and denied the
grievance again.

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 Agency found that under the terms of the negotiated grievance procedure,
the grievance was untimely filed. The Commission has consistently found that it does not have
jurisdiction to review procedural determinations by an agency 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.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Grievant 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.
Grievant’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.
0220170002

3
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).
GRIEVANT’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 Grievant’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 16, 2018
Date