0120162196
01-12-2018
Elene K,1 Complainant, v. Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Elene K,1
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120162196
Hearing No. 570-2015-00637X
Agency No. 2014-25644-FAA-02
DECISION
On June 23, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's May 19, 2016 final decision concerning her equal employment opportunity (EEO) complaint alleging 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
Introduction
At the time of events giving rise to this complaint, Complainant worked as an Aviation Safety Technician at an Agency Flight Standards District Office in Greensboro, North Carolina. On September 19, 2014, Complainant filed an EEO complaint alleging that the Agency subjected her to hostile work environment harassment on the bases of sex (female), disability (Cancer2), and reprisal for prior protected EEO activity when:
(a) effective January 12, 2014, the Agency eliminated Complainant's use of an alternative work schedule (AWS) and made her work a traditional five days per week/eight hours per day (5/8) schedule,
(b) during a meeting on January 15, 2014 to discuss Complainant's upcoming medical-related leave, an Administrative Officer asked "if [Complainant] actually had a serious medical illness,"
(c) from January 28, 2014 to March 24, 2014, the Agency denied Complainant the accommodation of telework and required her to provide additional medical documentation to telework,
(d) on January 31, 2014, the Agency issued Complainant a letter threatening her with absence without official leave (AWOL) and requiring a second Family and Medical Leave Act (FMLA) form from her doctor,
(e) in 2014, the Agency requested additional medical documentation from Complainant resulting in her providing eight medical documentation records by April 2014,
(f) the Agency repeatedly denied Complainant's request to work four days per week/ten hours per day (4/10) as an accommodation, which would have minimized her need to use leave,
(g) in March 2014, the Agency required Complainant to submit additional medical request forms and required her to sign a Special Consent Form to allow release of her medical records directly to her immediate supervisor,
(h) on April 18, 2014, the Agency denied Complainant's request to telework, and
(i) in August 2014, the Agency requested a change of Complainant as a primary lead to an alternate lead on a special project (START Program Team), and cancelled her 2015 training for classes related to START Program Team duties3.
In her EEO complaint narrative, Complainant stated "Some items have been recently addressed, closed or temporarily resolved using the FAA/PASS grievance process, while other matters have not been addressed at all." The Agency investigated Complainant's complaint.
Investigation
The investigative record contains a grievance, dated January 7, 2014, in which Complainant alleged that the Agency treated her disparately when it eliminated her 4/10 AWS and imposed a 5/8 work schedule on her. In that grievance, Complainant alleged discrimination and retaliation by the Agency.4 Also, the record reveals a grievance, dated February 14, 2014, in which Complainant alleged that the Agency denied her telework renewal agreement based on reprisal. The record contains a May 5, 2014 grievance in which Complainant alleged the Agency discriminated and retaliated against her when, on February 14, 2014, it denied Complainant AWS. In a grievance dated July 28, 2014, Complainant alleged discrimination and retaliation when the Agency denied her AWS and accommodation request.
In a grievance response dated August 18, 2014, the Agency approved Complainant's request to work a 4/10 schedule, stating that it received additional medical documentation that impacted its decision. The Agency stated that the temporary approval would be effective August 24, 2014 through November 1, 2014.
Post Investigation
Following the EEO investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ) or an immediate final agency decision. Complainant requested the former, and, on March 31, 2016, filed a motion to amend her complaint to allege that the Agency discriminated against her when it (j) changed her job project status from "primary" to "alternate" and (k) in June 2015, failed to select her for an ASI-Cabin Safety position. The Agency filed a response to Complainant's motion.
On May 5, 2016, the assigned AJ denied Complainant's motion to amend, stating that (j) is duplicitous of (i) and Complainant initiated EEO contact for (k) in an untimely manner. Further, the AJ dismissed Complainant's hearing request pursuant to 29 C.F.R. �� 1614.107(a)(4) & .301(a). The AJ stated that Complainant elected to proceed in the negotiated grievance process for the alleged incidents.
The AJ remanded the complaint to the Agency. On May 19, 2016, the Agency issued a final decision fully implementing the AJ's dismissal. The instant appeal from Complainant followed.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(4) provides that an agency may dismiss a complaint where the complainant has raised the matter in a negotiated grievance procedure that permits claims of discrimination. EEOC Regulation 29 C.F.R. � 1614.301(a), in pertinent part, states:
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 allegations of discrimination to be raised in a negotiated grievance procedure, a person wishing to file a complaint or a 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.
Complainant is employed by the Agency, which is covered by a collective bargaining agreement that permits allegations of discrimination to be raised in the negotiated grievance procedure. We note that Article 5, Section 4 of the FAA-PASS 2012 Agreement (effective December 16, 2012) permits allegations of discrimination.
The record shows that between January 7, 2014 and July 28, 2014, Complainant filed four grievances alleging discrimination and retaliation. The claims raised in the grievances pertain to the Agency's elimination of Complainant's 4/10 AWS, placement of Complainant on a 5/8 work schedule, failure to renew Complainant's telework agreement, denial of Complainant's AWS request, and denial of Complainant's accommodation request.
We find that the Agency properly dismissed incidents (a), (c), (f), and (h) pursuant to 29 C.F.R. � 1614.107(a)(4), because they are actions that have already been adjudicated through the negotiated grievance process. Further, we find that incidents (b), (d), (e), (g), and (i) are inextricably intertwined with the Agency's processing of Complainant's requests for AWS, telework, and accommodation for her medical condition.
Finally, we agree with the dismissal of (j) and (k) pursuant to 29 C.F.R. �� 1614.107(a)(1) & (a)(2), respectively.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision.
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
January 12, 2018
__________________
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 The record shows that Complainant was absent from work between mid-January 2014 and February 2014 due to cancer removal. She began preventative chemotherapy treatments once a week, on Wednesdays.
3 Complainant stated that, on September 3, 2014, the Agency asked her to consider staying in her primary position and informed her that it would not change her 2015 training schedule. The record contains an email, dated September 3, 2014, wherein the Agency stated that Complainant would remain a START member for her office and asked her to reconfirm her ability to attend START training from January 6, 2015 to January 23, 2015.
4 Article 5, Section 4 of the FAA-PASS 2012 Agreement (effective December 16, 2012) states:
In matters relating to 5 U.S.C. 2302(b)(1) dealing with certain discriminatory practices, an aggrieved employee shall have the option of utilizing this grievance procedure or any other procedures available in law or regulation, but not both.
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