[Redacted], Tommie R., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionMay 19, 2021Appeal No. 2021002039 (E.E.O.C. May. 19, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tommie R.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2021002039 Agency No. 200J-0556-2020106091 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated January 19, 2021, dismissing a formal 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. BACKGROUND During the relevant time, Complainant worked for the Agency as a Lead Technician, GS-7, in Chicago, Illinois. On November 26, 2020, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African American) and in reprisal for prior protected activity (whistleblowing) when: 1. from July 27, 2020 through August 24, 2020, Complainant was accused of inappropriate conduct; and 2. on September 2, 2020, he was issued a proposed reprimand which was sustained on September 17, 2020. 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. 2 2021002039 The Agency dismissed the formal complaint in its entirety, pursuant to EEOC Regulation 29 C.F.R. § 1614.107 (a)(4), on the grounds that the matters was previously addressed in the Agency's negotiated grievance procedure. The Agency also dismissed reprisal as a basis. ANALYSIS AND FINDINGS The Commission's regulations provide that Agencies should dismiss formal EEO complaints that raise the same matter previously raised in a negotiated grievance procedure that permits claims of discrimination. 29 C.F.R. § 1614.107(a)(4). An agency employee covered by a collective bargaining agreement who wishes to raise allegations of discrimination may do so under the negotiated grievance procedure or the EEO procedure, but not both. 29 C.F.R. § 1614.301(a). Thus, if a Complainant elects to raise allegations of discrimination through the grievance procedure and subsequently raise the same allegations in an EEO complaint, the Agency will dismiss the complaint. Cary J. v. Dep't of Labor, EEOC Appeal No. 0120182131 (Mar. 8. 2019). The Agency need not inform the individual of the need to elect either the grievance or the EEO procedure. Id. The record indicates that Complainant filed a grievance on October 16, 2020, encompassing the matters raised in the subject claims The record indicates that the alleged inappropriate behavior involved concerns his supervisor had that Complainant did not say “please” when communicating with co-workers and Complainant’s response to the concerns of his supervisor. Complainant's grievance was denied, and the reprimand was upheld. The record indicates that Complainant was a union member covered by a collective bargaining agreement that permitted employees to raise allegations of discrimination under EEO procedures or the negotiated grievance procedure, but not both. Complainant first elected to pursue the instant matter through the negotiated grievance process rather than the EEO complaint process. As such, the formal complaint was properly dismissed pursuant to EEOC Regulation 29 C.F.R. § 1614.107 (a)(4). Finally, we determine that the Agency also properly dismissed reprisal as a basis. Whistleblowing, unless it involved oppositional activity involving claims of discrimination, is not a protected EEO activity under Title VII. See Reavill v. Department of the Navy, EEOC Appeal No. 05950174 (July 19, 1996). Here, there is no indication that Complainant’s whistleblowing involved allegations of discrimination. CONCLUSION The Agency's final decision dismissing the instant formal complaint is AFFIRMED for the reasons discussed above. 3 2021002039 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). 4 2021002039 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 May 19, 2021 Date Copy with citationCopy as parenthetical citation