0120160681
02-23-2016
Mac O.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Mac O.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120160681
Agency No. 200I05162015105019
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated November 23, 2015, dismissing 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Advance Medical Support Assistant (GS-06) at the Lee County Healthcare Center in Coral, Florida.
On October 14, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of national origin (Hispanic/Puerto Rican), sex (male), physical disability, and age (49) when:
1. On December 15, 2014, he was reassigned without notice from the Naples Community Based Outpatient Clinic ("CBOC") to the Lee Country Health Care Center in Cape Coral, Florida (also known as the Cape Coral Healthcare Center), pending the finding of an internal investigation;
2. From December 15, 2014 through August 26, 2015 and ongoing, Complainant was told that the investigation referenced in Claim 1, which initiated his "temporary," reassignment began December 18, 2014, but he has not been provided with any information on the findings or documentation of the investigation; and
3. On July 29, 2015, he was permanently reassigned to the Lee County Health Care Center in Coral, Florida.
During the relevant time period, Complainant had the same position, title, responsibilities, and pay grade while working at Lee County Healthcare Center as he did at Naples CBOC, although he wished to return to the Naples location. Complainant made a number of unsuccessful document requests concerning the investigation and received a partial answer on May 13, 2015, in an Agency response letter to an inquiry from Complainant's congressional representative, made on Complainant's behalf. The letter provided that Complainant's transfer and investigation arose from "issues reported by several staff members;" the investigation was still under review (nearly 6 months after it commenced); and the "procedures used to temporarily reassign Complainant were within prescribed Agency policy provided by the Agency's Office of Resolution Management." Complainant brought the instant complaint three months later, having received no further information and after learning the reassignment to Lee County Healthcare Center would be permanent.
The Agency dismissed the complaint pursuant to 29 C.F.R. �1614.301(a) and 29 C.F.R. �1614.107(a)(4) finding that Complainant already raised Claim 1 in a Step 3 grievance, decided on November 7, 2014, and that Claims 2 and 3 were inextricably intertwined with Claim 1 so that they must also be pursued within the negotiated grievance process.
ANALYSIS AND FINDINGS
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.
The record reflects that Complainant is covered by the CBA. Article 43 of the CBA, which the Agency submitted in response to Complainant's appeal, provides that a complaint of discrimination may be raised under the "statutory (EEOC) procedure" or the CBA grievance procedure, but not both. On appeal, Complainant successfully demonstrates that the claims raised in the November 7, 2014 Step 3 Grievance Resolution were not the same as those raised in the instant complaint, negating the Agency's rationale for dismissal. The incidents in question herein commenced on December 14, 2014. There was a resolution to his grievance on November 14, 2014 - hence they cannot be the same claims.
Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED. The complaint is REMANDED to the agency for further processing in accordance with this decision and the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claim 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 (1) the Agency's letter of acknowledgment to Complainant, (2) the notice that transmits the investigative file and notice of rights, and (3) either the Final Agency Decision ("FAD") or Complainant's signed hearing request and the transmittal letter accompanying Complainant's file for a hearing, must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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, the 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. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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, P.O. Box 77960, Washington, DC 20013. 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, Director
Office of Federal Operations
February 23, 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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