EEOC Appeal No. 0120182377
09-18-2018
Renaldo V. v. Dep't of Veterans Affairs
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Renaldo V.,1
Complainant,
v.
Peter O'Rourke,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120182377
Agency No. 2003-0010-2018102843
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated June 12, 2018, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Contract Specialist at the Agency's facility in McClellan, California.
On December 11, 2017, the Union filed a Step 1 grievance on Complainant's behalf regarding his retirement at GS12, Step 10, and reinstatement as a GS12, Step 1. The Agency responded to the matter on January 11, 2018.
On January 12, 2018, the Union then filed a Step 2 grievance. The Agency responded to that grievance on January 22, 2018.
On January 26, 2018, the Union filed a Step 3 grievance on the same grade/step pay matter. On February 14, 2018, the Agency responded.
On June 1, 2018, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of national origin and age when:
1. on March 9, 2018 and ongoing, the Human Resources Officer, the Branch Chief of the Network Processing Office 17 (NCO-17), and the Division 1 Chief of NCO-17, and the Acting Director of Contacting of NCO-17, denied Complainant's request to change his pay grade from GS-12, Step 1 to GS-12, Step 10.
On June 12, 2018, the Agency issued its final decision. The Agency noted that while the Union fled the grievances on behalf of Complainant, Complainant was an active participant in the process. Specifically, the Agency found that Complainant participated in meetings regarding the grievances, and actively tracked correspondences. The Agency dismissed the formal complaint for stating the same matter in a negotiated grievance process which permits discrimination claims to be raised. pursuant to 29 C.F.R. � 1614.107(a)(4). The Agency determined that Complainant, through the union, filed a grievance concerning the same issue on December 11, 2017, January 12, 2018, and January 26, 2018, all before his formal complaint was filed on June 1, 2018.
The instant appeal followed. Complainant states that the grievance was filed because the Agency did not follow the proper re-instatement administrative law when he was re-employed. Complainant contends that the Agency's Human Resources department purposefully delayed and frustrated the grievance process by not providing requested information. Complainant argues that he had not filed any EEOC complaints during his grievance filing because he only became aware of the discrimination after the grievance process had ended.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.301(a) states that when a person is employed by an Agency subject to 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 a 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 grievance which alleged 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.
The Commission acknowledges that the Agency has provided a portion of Article 43 - Grievance Procedure of the collective bargaining agreement. It contains express language stating that the grievance procedure permits claims of discrimination.
The Commission finds that Complainant's grievance and EEO complaint cover the same matter. The Commission acknowledges Complainant's appellate arguments. However, once Complainant elected to pursue the matter through the negotiated grievance procedure and this procedure provided that he could challenge the employment action as discriminatory, Complainant is foreclosed from subsequently filing an EEO complaint on the same matter. This is true regardless of whether Complainant raised allegations of discrimination in his grievance.
The Agency's final decision dismissing the formal complaint for the reason discussed above is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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).
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. ure
Carlton M. Hadden, Director
Office of Federal Operations
September 18, 2018
__________________
Date
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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