Nila S.,1 Complainant,v.Ashton B. Carter, Secretary, Department of Defense (Department of Defense Education Activity), Agency.

Equal Employment Opportunity Commission

Apr 20, 2016

0120142134 (E.E.O.C. Apr. 20, 2016)

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

Nila S.,1
Complainant,

v.

Ashton B. Carter,
Secretary,
Department of Defense
(Department of Defense Education Activity),
Agency.

Appeal No. 0120142134

Agency No. EU-FY14-011

DECISION

Complainant filed an appeal with this Commission from the Agency's decision dated April 2,
2014, 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. For the
following reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Guidance
Counselor at the Ramstein Intermediate School (IS), Kaiserslautern District. On January 6,
2014, Complainant filed a formal complaint alleging that the Agency subjected her to
discrimination on the bases of race (African-American) and in reprisal for prior protected EEO
activity/whistleblowing (EEO complaint EU-FY08-039 filed in 2008, and reporting that the
Agency was allowing improper grades to be recorded in student transcripts) when:

On October 25, 2013, the Director denied Complainant’s grievance and upheld her
five-day suspension.

The Agency dismissed Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(4), on
the grounds Complainant raised the matter in a negotiated grievance procedure that permits
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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allegations of discrimination to be raised. The Agency stated that the Principal of Ramstein IS
issued Complainant a Notice of Proposed Suspension on August 22, 2013. The Agency noted
on September 27, 2013, the Superintendent, Kaiserslautern District, upheld the proposed
suspension and issued Complainant a Decision on Proposed Suspension.

The Agency noted on October 9, 2013, Complainant filed a timely written Step III grievance
through the Negotiated Agreement between the Agency and Overseas Education Association,
an Agency recognized collective bargaining unit. The Agency noted that Complainant’s
grievance specifically addressed the suspension Complainant received on September 27, 2013,
and Complainant asked that the suspension be rescinded. The Agency noted that in her
grievance that Complainant raised an allegation of discrimination based on race. The Agency
stated that on October 25, 2013, the Agency issued a decision denying Complainant’s Step III
grievance.

The Agency stated that Article 12 of the Negotiated Agreement between the Agency and the
Overseas Education Association permits the acceptance of grievances which allege
discrimination. The Agency determined the matter was initially raised on October 9, 2012,
under the permissible negotiated grievance procedures prior to Complainant filed her formal
complaint of discrimination on January 6, 2014. Thus, the Agency dismissed Complainant’s
complaint.

On appeal, Complainant states she is not seeking to redress the conduct that was the subject of
the grievance. Complainant explains that she filed a union grievance to dispute the five-day
suspension she received for allegedly violating the Agency’s Personally Identifiable
Information (PII) Policy. Complainant notes the reason for the suspension was due to racial
discrimination. Complainant claims the grievance process did not address her reports of racial
discrimination. Rather, Complainant contends the grievance process concealed the
discrimination because the proposing, deciding, and reviewing officials were made up of
persons employed by the Agency, which created egregious conflicts of interest, ex parte
contacts, and due process violations.

ANALYSIS AND FINDINGS

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.

Complainant's grievance and the subsequently filed instant formal complaint address the same
matter, Complainant’s five-day suspension. Complainant acknowledges that she raised a claim
of racial discrimination in the grievance process. With regard to Complainant’s assertion that

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her grievance does not address her discrimination claim, the record reveals that the Agency
denied Complainant’s complaint of discrimination in the Step III grievance decision. As
Complainant elected to pursue her five-day suspension through the negotiated grievance
process, we find she is precluded from pursuing the same matter in the EEO process.

The record reveals that Complainant’s grievance concerning her five-day suspension was
denied at Step III of the grievance process. Following the Step III grievance decision,
Complainant filed an appeal with the Commission which was docketed under EEOC Appeal
No. 0220140001 and is currently pending before the Commission. Furthermore, it appears
that Complainant’s complaint is at least in part a collateral attack on the grievance process
which does not state an independent claim of discrimination.

CONCLUSION

Accordingly, the Agency’s final decision dismissing Complainant’s complaint is AFFIRMED.

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).

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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

April 20, 2016
Date