0120161364
06-03-2016
Bill A.,1 Complainant, v. Eric K. Fanning, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Bill A.,1
Complainant,
v.
Eric K. Fanning,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120161364
Agency No. ARANAD15JUL02515
DECISION
Complainant timely appealed to this Commission from the Agency's January 21, 2016 dismissal of his 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., 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 Pneudraulics Mechanic (WG-10) at the Anniston Army Depot Directorate of Production, Component Subassembly Division, Hydraulic Systems Branch, in Anniston, Alabama.
On September 25, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), color (Black), age (64), and reprisal for prior protected EEO activity2 when:
1. Starting December 8, 2014 through October 2, 2015, his supervisor ("S1") detailed him to another cost center ("CC-2") even though S1 previously told his unit that WG-10 level mechanics in their cost center ("CC-1") would not be loaned out; and
2. On or around July 1, 2015, he learned that he was the only WG-10 mechanic in his CC-1 work unit to be loaned out on an involuntary detail, even though there were other WG-10s in his unit with less seniority that should have been detailed before him.
Complainant also raised a third claim in his Formal Complaint that the Agency failed to address in its decision:
3. He was loaned out on an involuntary detail three (3) consecutive times, despite his requests to return to his position at CC-1.
The record indicates that cost center supervisors, such as S1, were authorized to "loan out" or detail employees within their work unit to another cost center within the Agency, regardless of whether the employee volunteered for the detail. This authority is limited under the Negotiated Agreement, or Collective Bargaining Agreement ("CBA"), between Agency management and the employee union, which requires Management to rotate such details in reverse seniority, and to ensure that all employees within a unit have been detailed once before placing an employee on a second detail. The CBA allows exceptions to the rotation requirements based on factors such as employee qualifications and workload requirements.
When Complainant was involuntarily detailed to work in CC-2 starting December 8, 2014, he initiated a grievance, in accordance with the CBA. Through a union representative, Complainant alleged, among other things, that S1 violated CBA rotation requirements for the "loan-out roster" (a listing of unit employees by seniority) identifying approximately 9 to 11 employees who, based on the loan-out roster, should have been detailed before Complainant. Complainant pursued his grievance through Step 3, requesting reinstatement to his position in CC-1 as relief. On January 8th and 22nd, 2015 the Vice President of the local Union dismissed Complainant's second and third level grievances, finding unequivocally that S1 acted in accordance with the CBA when he detailed Complainant to CC-2 because the detail was based on workload requirements.
Here, Complainant raises the same allegation and request for relief that he provided in his grievance over the December 8, 2014 detail. However, Complainant also contends that April 6, 2015, the date he initiated contact with an EEO counselor for the instant complaint, was the start date for a separate involuntary detail. Claim 3 and the record indicate that Complainant was loaned out for two involuntary details in addition to the December 8, 2014 detail.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(4), because he already pursued the same claim as a grievance under a CBA that permits claims of discrimination to be raised. The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(4) provides that an agency subject to 5 U.S.C. � 7121(d) may dismiss an EEO complaint where the matter was first raised in a negotiated grievance procedure that permits claims of discrimination to be raised. Specifically, the collective bargaining agreement ("CBA") must allow employees to raise matters of alleged discrimination under EEO process provided in 29 C.F.R. � 1614 or under the negotiated grievance procedure in the CBA, but not both.
EEOC Regulation 29 C.F.R. � 1614.301(a) provides that an election to proceed under a negotiated grievance procedure is made by the filing of a written grievance irrespective of whether the Agency had informed the individual of the need to elect or whether the grievance has actually raised an issue of discrimination. Complainants elect the EEO process by filing a formal EEO complaint prior to filing a timely written grievance.
In Ericson v. Dep't of the Army, EEOC Request No. 05920623 (Jan. 14, 1993), the Commission stated that "the agency has the burden of providing evidence and/or proof to support its final decisions." See also Gens v. Dep't of Defense, EEOC Request No. 05910837 (Jan. 31, 1992). The Agency partially met this evidentiary burden. Specifically, it supported its application of 29 C.F.R. � 1614.107(a)(4) by including a copy of the relevant provisions of the signed CBA, dated November 24, 2009; copies of Levels 1, 2, and 3 of Complainant's Grievance (dated December 17 and 30, 2014 and January 15, 2015) and the decisions from the Union's Vice President, referenced above. We find this sufficient to bar Complainant from pursuing an EEO complaint with regard to the December 8, 2014 detail (Claim 1) only.
There is no evidence in the record that Complainant filed grievances concerning the other two detail assignments, which he references in Claim 3, therefore he is not barred under 29 C.F.R. � 1614.107(a)(4) from pursuing them as EEO complaints. The Agency appears to characterize the December 8, 2014 detail as a single assignment lasting through October 2, 2015, which fails to address Complainant's repeated allegations of two or three consecutive involuntary detail assignments in the record and within his Formal Complaint. If Complainant pursues these two claims (Claim 3) he may address Claim 2 as it pertains to Claim 3 only, and use the December 8, 2014 as background evidence only.
Regarding complainant's claim of reprisal, the Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. United States Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual on Retaliation, No. 915.003 (May 20, 1998)). Instead, the statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. Id. The Commission reviews reprisal claims "with a broad view of coverage. Under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter... complainant or others from engaging in protected activity." Maclin v. United States Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007) Taking this broad view of coverage into consideration, and after a thorough review of the record, we find that if true, Complainant's allegations of multiple consecutive involuntary detail assignments is reasonably likely to deter him or others from engaging in protected activity.
CONCLUSION
Accordingly, the Agency's final decision dismissing Claim 1 is AFFIRMED, and the Agency's final decision dismissing Claim 2 is REVERSED.
Claims 2 and 3 are hereby REMANDED for further processing in accordance with this Order and the Decision below.
ORDER
The Agency is ordered to process the remanded claims (2 and 3) in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. 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 becomes final, 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.
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
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, 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. 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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. The requests 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 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
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
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. signature
Carlton M. Hadden, Director
Office of Federal Operations
June 3, 2016
__________________
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 Complainant cites Agency Nos. ARANAD07JUL02809; ARANAD08APROl193; ARANAD08AUG03153; ARANAD08AUG03329; ARANAD09AUG03674, as the prior EEO activity in his reprisal claim.
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