[Redacted], Shaunda D., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Sep 15, 2021

Appeal No. 2021002995 (E.E.O.C. Sep. 15, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shaunda D.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2021002995 Agency No. 2003-0554-2021100954 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated March 18, 2021, dismissing her complaint alleging 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., 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Licensed Practical Nurse/Certified Ophthalmology Technician, GS-9, at the Agency’s VA Medical Center in Denver, Colorado. On February 26, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination and harassment on the bases of sex (female), disability, age, and reprisal for prior protected EEO activity when: 1. From 2018 to October 6, 2020, Agency management failed to accommodate Complainant with a flexible reporting schedule; and 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. 2021002995 2 2. One September 10, 2020, Complainant’s supervisor (Supervisor) removed Complainant from federal employment with an effective date of September 17, 2020. The Agency dismissed these claims, pursuant to 29 C.F.R. § 1614.107(a)(4), on the grounds that Complainant had already raised these matters in a negotiated grievance procedure that permitted allegations of discrimination. The Agency also dismissed claim (2) on the grounds that Complainant had not timely contacted an EEO counselor regarding this incident. Complainant filed the instant appeal. On appeal, Complainant contends she timely filed her EEO complaint; that the Agency has failed to submit evidence sufficient for dismissal; and that the Agency has not articulated legitimate reasons for its actions and “the Agency’s stated reasons are not pretext for a request for the decision to dismiss.” (Appeal, p. 1). The Agency contends on appeal that the formal complaint was properly dismissed because the claims raised therein were already raised in a negotiated grievance. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(4) provides that the agency shall dismiss a 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. 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. 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. Here, Complainant was employed by an agency subject to 5 U.S.C. § 7121(d). Complainant was also covered by a collective bargaining agreement (CBA) that permitted allegations of discrimination to be raised in the negotiated grievance procedure. (Complaint File, pp. 73). Complainant filed a Step 3 grievance on September 11, 2020 (Complaint File, pp. 57-65), prior to contacting an EEO counselor on November 16, 2020 (See Complaint File, p. 1). In her grievance, Complainant challenged her removal and alleged the Agency had not made a good faith effort to engaged in the interactive reasonable accommodation process with Complainant. (Complaint File, pp. 57-65). On October 5, 2020, Complainant received notice that her grievance was denied. (Complaint File, pp. 67-68). 2021002995 3 In EEO counseling and in her formal complaint, Complainant alleged her removal and the Agency’s refusal to engage in the reasonable accommodation process were discriminatory. (Complaint File, pp. 1-4, 45). These are the exact same issues that were raised in her grievance. Since Complainant first filed a grievance with an agency whose negotiated agreement permits the acceptance of grievances which allege discrimination, she may not thereafter file a complaint on the same matter. Thus, the Agency properly dismissed Complainant’s formal complaint pursuant to 29 C.F.R. § 1614.107(a)(4). CONCLUSION The Agency's final decision dismissing the formal complaint is AFFIRMED for the reasons discussed above. 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. 2021002995 4 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. 2021002995 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 September 15, 2021 Date