Karin C.,1 Complainant,v.Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Jun 3, 2016

0120151527 (E.E.O.C. Jun. 3, 2016)

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

Karin C.,1
Complainant,

v.

Anthony Foxx,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.

Appeal No. 0120151527

Agency No. 201526027FAA03

DECISION

Complainant filed a timely appeal with this Commission from the Agency's decision dated
March 5, 2015, dismissing her 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Air Traffic
Control Specialist at the Agency’s facility in Birmingham, Alabama. On February 7, 2015,
Complainant filed a formal complaint alleging that the Agency subjected her to discrimination
on the basis of sex (female) when she was suspended for seven calendar days, effective
October 22 - 23, 2014; October 27, 2014; and October 29 - November 1, 2014.

The Agency dismissed the complainant, pursuant to 29 C.F.R. § 1614.107(a)(4), on the
ground that Complaint had previously elected to raise the same matter in a negotiated
grievance procedure.

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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ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. § 114.107(a)(4) provides that the agency shall dismiss a
complaint where the complainant has raised the matter in a negotiated grievance procedure that
permits allegations of discrimination and § 1614.301 indicates that the complainant has elected
to pursue the non-EEO process. EEOC Regulation 29 C.F.R. § 1614.301(a) states that 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 claims of discrimination to be raised in a negotiated
grievance procedure, a person wishing 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.

Complainant was employed by an agency subject to 5 U.S.C. § 7121(d). Complainant was also
covered by a Collective Bargaining Agreement (CBA) that permitted allegations of
discrimination to be raised in the negotiated grievance procedure. A complainant need not
actually raise a claim of discrimination in a grievance in order to have elected the union forum.
Perkins v. Dept. of Treasury, EEOC Appeal No. 01A20964 (May 6, 2003). Here, the record
shows that a grievance challenging Complainant’s suspension was filed pursuant to “Article 9
of the 2009 Collective Bargaining Agreement.” Report of Investigation (ROI) at 15. In the
EEO Counselor’s report, Complainant acknowledges having filed a grievance “[o]n this same
matter.” ROI at 6. This constitutes an election under § 1614.301(a).

CONCLUSION

For the foregoing reasons, the Agency’s final decision dismissing the 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:

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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

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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

June 3, 2016
Date