[Redacted], Jarrod W., 1 Complainant,v.Thomas W. Harker, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Jan 28, 2021

Appeal No. 2020005075 (E.E.O.C. Jan. 28, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jarrod W.,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Appeal No. 2020005075 Agency Nos. DON (MC) 20-00681-01882 & DON (MC) 20-00681-02265 DECISION On September 11, 2020, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from two final Agency decisions (FADs) dated August 24, 2020, dismissing his complaint of unlawful employment discrimination. The appeal is accepted in accordance with 29 C.F.R. § 405(a). BACKGROUND At the time of events giving rise to his equal employment opportunity (EEO) complaint, Complainant was employed by the Agency as a Housing Manager, GS-1173-09, at the Marine Corps Base, Billeting Bachelor Housing in Camp Pendleton, California. On August 3, 2020, Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination and harassment when: Agency No. DON (MC) 20-00681-01882 1. On March 6, 2020, his first line supervisor (S1) failed to control the situation when in her presence S1 allowed Coworker 1 to make threats against him; 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. 2020005075 2 2. On 12 April 2020, it deducted .70 time from his pay for leaving the workplace without permission to speak a Union Official about the above harassment; and Agency No. DON (MC) 20-00681-02265 (same complaint, different Agency Number) 3. On June 11, 2020, he was issued a letter of removal terminating him from employment for unacceptable performance. After Complainant filed his complaint the Agency bifurcated issues 1 and 2 from issue 3 because only issue 3 was “mixed”, meaning appealable to the Merit Systems Protection Board (MSPB). The FAD on issues 1 and 2 dismissed them because Complainant previously grieved them in a negotiated grievance procedure that permits allegations of discrimination. 29 C.F.R. § 1614.107(a)(4). The FAD on issue 3 dismissed that issue for the same reason. Thereafter, on September 11, 2020, the Agency issued a corrected FAD on issue 3. The first one had appeal rights to the EEOC, Office of Federal Operations, and the corrected one had appeal rights to the MSPB, not the EEOC. The instant appeal followed. On appeal, Complainant writes that he was wrongly terminated. In reply to Complainant’s appeal, the Agency recounts, in part, that Complainant appealed the FAD on his removal to the MSPB. We take administrative notice that on November 12, 2020, Complainant via his attorney appealed his removal to the MSPB, and on December 17, 2020, withdrew the appeal with prejudice. See MSPB No. SF-0432-21-0071-I-1 (Initial Decision Dec. 17, 2020). ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. §1614.301 directs as follows. Where a person is employed by an agency subject to 5 U.S.C. § 7121(d) and is covered by a collective bargaining agreement (CBA) that permits allegations of discrimination to be raised in the negotiated grievance procedure, an election must be made to proceed under either the negotiated grievance procedure or the EEO complaint procedure (part 1614). The election is indicated by the filing of a written complaint or timely grievance, whichever is done first. 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 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. As an employee of the Navy, Complainant is employed by an agency subject to 5 U.S.C. 7121(d). Also, the record shows Complainant was covered by a collective bargaining agreement (CBA) that permitted allegations of discrimination to be raised in the negotiated grievance procedure. See Complaint file Bates No. 127 - 128 (which is CBA, at 56 - 57). 2020005075 3 On April 12, 2020, using the negotiated grievance procedure, Complainant filed a Step 1 grievance alleging reprisal when .7 hours was deducted from his paycheck for leaving the office (same as issue 2 of his subsequent EEO complaint), and as remedy asked in part that S1 receive training on supervisory management and Coworker 1 be reprimanded. These requested grievance remedies implicitly raised issue 1 which is in Complainant’s subsequent EEO complaint because they are for the alleged harassment in issue 1. At Step 3 of the same grievance, Complainant alleged “ongoing reprisal in the workplace.” On June 24, 2020, Complainant filed a grievance on his removal, the same as issue 3 in his subsequent EEO complaint. EEOC Regulation 29 C.F.R. § 1614.107(a)(4) states that an Agency shall dismiss a complaint where the complainant raised the matter in a negotiated grievance procedure that permits allegations of discrimination and 29 C.F,R. § 1614.301 indicates that the complainant has elected to pursue the non-EEO process. The Agency properly dismissed Complainant’s complaint - issues 1, 2 and 3 under this regulation. The FADs are AFFIRMED.2 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. 2 Because the Agency’s dismissal of Complainant’s removal allegation is affirmed for the above reason, we need not address the effect the MSPB’s dismissal with prejudice of the same claim has in the EEO process. 2020005075 4 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). 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. 2020005075 5 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 January 28, 2021 Date