0120161604
10-03-2016
Jody L.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jody L.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120161604
Agency No. 200P06682016100614
DECISION
Complainant timely appealed to this Commission from the Agency's March 26, 2016 decision dismissing his complaint of unlawful employment discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Police Officer GS-6 in the Security Service at the Agency's Mann-Grandstaff VA Medical Center in Spokane, Washington.
On February 10, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination and ongoing harassment on the basis of reprisal for engaging in "protected activity" when:
1. On or about March 25, 2015, the Chief of Human Resources ("H1") told him that he was prohibited from participation in union activities or advocating for others while on duty;
2. On or about March 27, 2015, he filed a union grievance against H1 for interfering with his job duties;
3. On or about April 5, 2015, the Nurse Manager ("N1") accused him of making an aggressive move towards her;
4. On or about April 8, 2015, he was stripped of his gun, badge and credentials;
5. On or about April 8, 2015, he was sent home on Administrative Absence leave; and
6. On August 14, 2015, he was written up for the aggressive behavior.
7. On or about April 10, 2015, he was denied training opportunities.
8. During the months of April, May, June, July and August, 2015, he was denied overtime.
9. On July 15, 2015, he was not selected for the position of Deputy Chief of VA Police Services.
Complainant, an active member of the Union, regularly performed mediation and acted as an advocate for other union member employees throughout the facility. The Chief of Human Resources ("H1") saw that Complainant would engage in these activities while he was still on duty and wearing his police uniform. Concerned that Complainant was failing to properly "disconnect" Union and Agency matters, H1 informed Complainant's supervisor at the time ("S1"). S1 instructed Complainant not to mediate or advocate for other employees in uniform or "on Agency time." H1 escalated the matter further by contacting the Chief of VA Police, who confirmed to both S1 and Complainant that S1's instructions were consistent with Agency and Union policy. Complainant alleges that he was told he could not participate in Union meetings while on duty or in Uniform either, in violation of the Collective Bargaining Agreement ("CBA") between the Union and the Agency.
H1 continued monitoring Complainant, scrutinizing his actions to such an extent that he told S1 that he believed H1 was harassing him as retaliation for engaging in protected activity. Specifically, Complainant cited his participation as a witness in a Merits Systems Protection Board ("MSPB") proceeding, which did not involve EEO claims. Complainant contacted the Union, and on March 27, 2015, the Union filed a Step 3 Grievance on his behalf. Among other things, the Union alleged that H1 and Management were "restricting [Complainant's] ability to participate in Union activities" and harassing him by "taking an inappropriate interest in his work and union activities." The Associate Director-Patient Care Services/Nurse Executive ("N1") was appointed to hear the grievance. N1 denied the grievance, so the Union filed for arbitration.
On April 8, 2015, N1 met with Complainant in order to discuss several points in his Step 3 Grievance. Both parties agree that Complainant became agitated and raised his voice during the meeting but then calmed down and apologized to N1. However, after the meeting, N1 reported that she felt "unsafe" in Complainant's presence and was concerned by his demeanor. At the end of his shift, Complainant was relieved of his badge, gun, and credentials, and was placed on an "Authorized Absence" pending a Fitness for Duty exam. Complainant remained on leave for nearly five months, which also meant he could not enter the property, attend training, or earn overtime income. Complainant also applied but was not accepted for a position within his department. Upon returning to duty in August 2015, his supervisor issued him a non-disciplinary written counseling letter about his alleged conduct during the April 8, 2015 meeting. The Union attempted to amend the Step 3 Grievance, to include the April 8, 2015 meeting, which it alleged violated Complainant's right to have a union representative present, as well as actions stemming from the April 8, 2015 meeting, which it identified as on-going violations. In December 2015, the arbitrator determined that there was no on-going violation and found the Agency to be the prevailing party of the proceeding.
In raising an EEO complaint, Complainant points to essentially the same facts and argues that a pattern of disparate treatment and a "continuing violation" of harassment. To support his argument of disparate treatment, Complainant points to a coworker ("C1") who was arrested for drunk driving. Like Complainant, C1 had to turn in his badge, gun, and credentials, however, in contrast to the "Approved Leave" Complainant received due to his alleged misconduct in the meeting with N1, C1 was allowed to continue working in an administrative capacity and could still drive patrol vehicles. Complainant also notes that C1, who pleaded to a lesser offense in the VA Court, C1 was still able to obtain a promotion as Lead Patrol Sargent.
The Agency dismissed Complainant's entire complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1). Specifically, the Agency determined that Claims 1 through 6 concerned matters previously raised through the negotiated grievance process and therefore could not be raised as an EEO complaint under 29 C.F.R. �1614.107(a)(4), and that Claims 7 through 9 were untimely pursuant to 29 C.F.R. � 1614.105(a)(1).
ANALYSIS AND FINDINGS
EEOC Regulation 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 or disabling condition. 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. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
Claims 1 through 8
Pursuant to 29 C.F.R. � 1614.301(a), a person who is employed by an agency that is subject to � 5 U.S.C. 7121(d), and covered by a Collective Bargaining Agreement ("CBA") that permits claims of discrimination to be raised in a negotiated grievance procedure, and who wishes 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.
In the instant complaint, the relevant CBA provides that claims of discrimination may be raised under its grievance procedure. See AFGE Master Contract, Art. 43 (March 2011). By his own account, Complainant was a member of the Union subject to the CBA during the relevant time frame. Additionally, the Agency has provided a copy of the Arbitrator's decision on the Step 3 Grievance the Union brought on Complainant's behalf, which names Complainant as the "Grievant." See Opinion and Award, VAMC (Spokane) and AFGE Local 1108, Arbitration FMCS #15-55412-6 (Dec. 9, 2015).
Claims 1 through 8 fail to state a claim because Complainant already raised these matters through the Grievance process. See Sieczkowski v. Social Security Admin., EEOC Appeal No. 01A45859 (Aug. 29, 2005) (citing 29 C.F.R. �1614.301(a), a federal sector employee may not file both a grievance and an EEO complaint on the same matter, if the applicable collective bargaining agreement permits the employee to raise issues of discrimination in the grievance process.); Johnson v. Dep't of Transportation, EEOC Appeal No. 01A21974 (June 3, 2002). Claim 1 refers to the Step 3 Grievance filed on Complainant's behalf in March 2015, and Claim 2 describes the same harassment and retaliation allegation found in that grievance. Complainant's remaining claims were also raised when the Union amended Step 3 Grievance to include the April 8, 2015 meeting between N1 and Complainant and the resulting instances of alleged harassment (i.e. Claims 3 through 8). The Arbitration decision for the Step 3 Grievance not only discussed the allegations in Claims 3 through 8, but also indicated that Complainant raised them again in two additional grievances after returning to duty in August 2015.
On appeal, Complainant argues that we should consider the on-going nature and pattern of the allegations, but fails to separate them from the claims in previously filed grievance. In addition to being previously raised within the grievance procedure, Complainant's allegations are inextricably intertwined with the processing of the Step 3 Grievance. In dismissing the allegations in Claims 3 through 8 as "outside the scope" of the Step 3 Grievance, the Arbitrator stated that the grievance process or arbitration is "the appropriate forum" for "the issues related to and arising from the [April 8, 2015 meeting]." Claims 3 through 8 all arose from the April 8, 2015 meeting between Complainant and N1, which was conducted in the course of processing the Step 3 Grievance. The April 8, 2015 meeting itself was an alleged violation of the CBA and basis for a grievance. Complainant has provided no evidence that the claims in the instant complaint are sufficiently separate from the claims raised in his prior grievances so that it would be appropriate to process them in this forum.
The proper forum for Complainant to have raised the allegations in Claims 1 through 8 was within the grievance process itself.
Claim 9
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The time limitation is not triggered until a complainant reasonably suspects discrimination. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11 , 1999). It is well established that a complainant may not have a reasonable suspicion of discrimination until the agency treats a coworker outside complainant's protected class(es) differently. See Swanigan v. United States Postal Serv., EEOC Appeal No. 01A33469 (Mar. 31, 2004); Gladden v. Dep't of the Treasury, EEOC Appeal No. 01A15024 (Dec. 14, 2001); Gadsden v. Dep't of the Navy, EEOC Appeal No. 01A05418 (Apr. 13, 2001).
The record supports the Agency's finding that reasonable suspicion existed for Complainant no later than July 15, 2015, when he learned he was not selected for the position of Deputy Chief of VA Police Services. We are not convinced by Complainant's assertion that he did not suspect discrimination until October 9, 2016, when he learned about C1's off-duty misconduct. Complainant's allegations in the instant complaint are against the same management officials that he previously alleged harassed him in the Step 3 Grievance, which he filed prior to filing his EEO complaint. We note that in his March 18, 2016 response to an Agency EEO request for additional information that would be used for determining its Final Order, Complainant stated that he did not reapply for the Deputy Chief position when the vacancy was listed the second time because "[he] felt that [he] was being discriminated against."
Even if Claim 9 was timely, it fails to support complainant's disparate treatment argument. Generally, when an agency cancels a vacancy announcement without making a selection, the complainant suffers no personal harm that would render him "aggrieved" for purposes of stating a claim. Van Nest v. Dep't of the Army, EEOC Request No. 05960752 (Nov. 20, 1998). Where, as here, no selection is made, an applicant claiming discriminatory nonselection usually fails to state a claim. See Walton v. Soc. Sec. Admin., EEOC Appeal No. 0120131499 (July 9, 2013) citing Young v. Dep't of Health & Human Serv., Appeal No. 0120073223 (Oct. 4, 2007); Jenkins v. Army, EEOC Request No. 05930365 (Oct. 22, 1993). However, a complainant can state a claim where the agency canceled a vacancy after making a selection, and the cancellation occurred under circumstances suggesting a deliberate intent to avoid selecting him. Shively v. Dep't of the Army, EEOC Request No. 05930361 (Sept. 30, 1993) (citations omitted).
Here, none of the referred applicants were selected for the first Deputy Chief vacancy announcement and we find no evidence in the record to suggest, as Complainant alleges, that this announcement was canceled with the deliberate intent to avoid selecting him. When the vacancy was re-posted three weeks later, Complainant was not selected because he chose not to re-apply. Complainant's arguments on appeal, even assuming he prevailed on his other claims (which we emphatically repeat that he has not) cannot apply to Claim 9, as Complainant acted on his own volition to take himself out of the applicant pool.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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 (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
October 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.
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