[Redacted], Felicidad S., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Mar 9, 2022

Appeal No. 2022000957 (E.E.O.C. Mar. 9, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Felicidad S.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022000957 Agency No. 200H-0541-2021103746 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated September 14, 2021, dismissing a formal complaint alleging unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Nursing Assistant at the Agency’s VA Northern Ohio Healthcare System in Cleveland, Ohio. On August 7, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on disability when she was suspended for five days from April 19 to April 23, 2021. She stated that her supervisor constantly disrespects her by talking about her disabilities and allowing co-workers to talk about her physical disabilities. Complainant further stated that she was constantly bullied by the Chief. In its September 14, 2021 decision, the Agency dismissed the formal complaint, pursuant to 29 C.F.R. § 1614.107(a)(4), because Complainant had first elected to pursue these matters under the Agency’s negotiated grievance procedure before she filed her EEO complaint. The instant appeal followed. 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. 2022000957 2 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 or grievance on 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. At the time of Complainant’s employment, she was employed by an agency subject to 5 U.S.C. 7121(d), and she was covered by a collective bargaining agreement (CBA). Section 3 of the CBA permitted allegations of discrimination to be raised in the negotiated grievance procedure. The record contains a copy of the relevant CBA. (Complaint file, page 189). The record indicates that on April 1, 2021, the union filed a Step 2 grievance on Complainant’s behalf relating to her suspension. A decision denying the grievance was issued on April 13, 2021. On April 14, 2021, the union filed a Step 3 grievance. A decision denying the grievance was issued on April 23, 2021. The Agency noted that on September 10, 2021, Complainant notified the assigned case manager that she was aware of the grievance, but it was her intention to file an EEO complaint on the harassment leading up to her receipt of five-day suspension. As noted above, in the formal EEO complaint she filed on August 7, 2021, Complainant alleged that she was subjected to harassment leading up to her five-day suspension. However, we conclude, as did the Agency, that both the grievance and the subsequent EEO complaint encompass the five-day suspension, as well as the harassment claim, and that both matters are inextricably intertwined. According, we find that Complainant first elected to pursue these issues through the negotiated grievance process when she filed her grievance prior to filing the EEO complaint, and that the Agency properly dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(4). CONCLUSION Based on a thorough review of the record, we AFFIRM the Agency’s final decision dismissing Complainant’s formal complaint. Because we affirm the dismissal for the reason discussed above, we will not address alternative dismissal grounds. 2022000957 3 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2022000957 4 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 March 9, 2022 Date