0120150341
04-20-2017
Lois G.,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lois G.,1
Complainant,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120150341
Hearing No. 550-2013-00120X
Agency No. SF-12-0493-SSA
DECISION
On October 27, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's October 1, 2014, final order 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
The issue presented is whether the Equal Employment Opportunity Commission Administrative Judge (AJ) properly dismissed Complainant's complaint for having raised the matter in a negotiated grievance procedure that permits allegations of discrimination, indicating an election to pursue the non-EEO process.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Technical Support Technician, GS-08, at the Agency's Regional Office in Richmond, California. In December 2011, Complainant applied for two positions: (1) Benefit Authorizer (BA), advertised under job announcement number SC-581691-12-MHS; and (2) Claims Authorizer (CA), advertised under job announcement number SC-581692-12-MHS. On March 25, 2012, the Agency did not select Complainant for the BA position. On April 17, 2012, when Complainant met with management to discuss her BA non-selection, management criticized her use of leave and arrival times, citing that as the reason it had recommended her "with reservations" to the selecting officials. On May 6, 2012, the Agency did not select Complainant for the CA position.
Grievances
Article 24, Section 8 of the 2012 SSA/AFGE National Agreement provides, in pertinent part, that an employee may file a grievance which alleges discrimination.
Pursuant to a March 30, 2012, Federal Labor Relations Authority (FLRA) decision (66 FLRA No. 108), an employee had 45 days from the date of the decision to file a grievance on any non-selection involving the Agency's internal vacancies on-line program (IVOL). 45 days from March 30, 2012 was May 14, 2012.
On May 10, 2012, Complainant filed two grievances, one for each non-selection. Complainant signed the grievance forms. In her grievances, Complainant stated that the Agency wrongly denied her a promotion via IVOL when it did not select her for a vacancy under job announcement numbers SC-581691-12-MHS (BA) and SC-581692-12-MHS (CA). In addition, Complainant stated that she believed the Agency's actions were because of her race, disability, and age.
EEO Complaint
On April 23, 2012, Complainant contacted an EEO Counselor. On August 7, 2012, Complainant filed a written complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), disability, and age (54) when:
1. On March 25, 2012, it did not select her for the BA position, advertised under job announcement number SC-581691-12-MHS;
2. On April 17, 2012, management criticized her use of leave and her arrival times; and
3. On May 6, 2012, it did not select her for the CA position, advertised under job announcement number SC-581692-12-MHS.
After the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an AJ. Complainant timely requested a hearing. On June 7, 2013 and July 1, 2013, the Agency filed motions to dismiss Complainant's complaint. On June 21, 2013 and July 15, 2013, Complainant filed oppositions to the Agency's motions. On August 28, 2014, the AJ granted the Agency's motions and issued a decision dismissing Complainant's complaint in accordance with 29 C.F.R. � 1614.107(a)(4), for having raised the matter in a negotiated grievance procedure that permits allegations of discrimination, indicating an election to pursue the non-EEO process.2 On October 1, 2014, the Agency issued a final order fully implementing the AJ's decision. Complainant then filed the instant appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant submitted several documents. Among other things, Complainant submitted: (a) her July 15, 2013, opposition to the Agency's motion, which argued that she elected to pursue the EEO process when she contacted an EEO Counselor on April 23, 2012, the grievances were filed by her union representative, and the grievances were not timely filed; and (b) documents related to the May 10, 2012, grievances.
ANALYSIS AND FINDINGS
An AJ may dismiss a complaint pursuant to � 1614.107 upon an agency's motion to dismiss a complaint. 29 C.F.R. � 1614.109(b). An agency shall dismiss an entire 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. 29 C.F.R. � 1614.107.
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. 29 C.F.R. � 1614.301(a). An election to proceed under this part is indicated only by the filing of a written complaint; use of the pre-complaint process as described in � 1614.105 does not constitute an election for purposes of this section. Id. An election to proceed under a negotiated grievance procedure is indicated by the filing of a timely written grievance. Id. 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 of whether the grievance has raised an issue of discrimination. Id.
Upon review of the record, we find that the AJ properly dismissed Complainant's complaint for having raised the matter in a negotiated grievance procedure that permits allegations of discrimination. Specifically, the record reflects the following: (a) the 2012 SSA/AFGE National Agreement permits allegations of discrimination to be raised in a negotiated grievance procedure; (b) pursuant to a March 30, 2012, FLRA decision, an employee had 45 days from the date of the decision (so until May 14, 2012) to file a grievance on any non-selection involving the Agency's IVOL; (c) Complainant filed timely written grievances on May 10, 2012 regarding her BA/CA non-selections involving the Agency's IVOL; and (d) Complainant did not file a written EEO complaint regarding those same BA/CA non-selections until August 7, 2012. Based on the above, we find that Complainant elected to pursue the non-EEO process.
Although Complainant argues that her April 23, 2012, EEO Counselor contact was evidence she elected to pursue the EEO process, the regulations clearly state that an election to pursue the EEO process is indicated only by the filing of a written complaint and use of the pre-complaint process (i.e., contact with an EEO Counselor) does not constitute an election. See 29 C.F.R. � 1614.301. Although Complainant argues that the grievances were filed by her union representative, her signature on the grievance forms reflects that she was involved with the filing of the grievances. Although Complainant argues that the grievances were not timely filed, we find otherwise as explained above.
CONCLUSION
The AJ properly dismissed Complainant's complaint for having raised the matter in a negotiated grievance procedure that permits allegations of discrimination, indicating an election to pursue the non-EEO process. Accordingly, the Commission AFFIRMS the Agency's final order.
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
__4/20/17________________
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 AJ stated that, because he was dismissing Complainant's complaint, he would not consider the parties' submissions concerning the merits of the complaint (discovery disputes, amendments, etc.)
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