Request No. 0520160261

Equal Employment Opportunity Commission

Jun 30, 2016

0520160261 (E.E.O.C. Jun. 30, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Clinton R.,1
Grievant,

v.

Ray Mabus,
Secretary,
Department of the Navy,
Agency.

Request No. 0520160261

Appeal No. 0220150010

Agency No. 146700802342

DECISION ON REQUEST FOR RECONSIDERATION

Grievant timely requested reconsideration of the decision in EEOC Appeal No. 0220150010
(Mar. 18, 2016). EEOC Regulations provide that the Commission may, in its discretion, grant
a request to reconsider any previous Commission decision where the requesting party
demonstrates 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. See 29 C.F.R. § 1614.405(c).

On November 30, 2012, Grievant filed a grievance, under the Agency's collective bargaining
agreement, alleging that he had been subjected to ongoing discriminatory harassment based on
his race, sex, and disability as evidenced by multiple incidents including, inter alia, he was
subjected to derogatory remarks, racially discriminatory remarks, and given multiple tasks that
had formerly been completed by more than one person.

In its April 19, 2013 second-step grievance decision, the Agency found that the discrimination
claims were untimely raised and unsubstantiated. Grievant filed an appeal with the
Commission. In EEOC Appeal No. 01220130004 (May 15, 2014), the Commission found that
the Agency erroneously relied upon EEOC regulations in dismissing the grievance as untimely.
The Agency failed to show that the regulations, which apply the 45-day time limit to EEO

1 This case has been randomly assigned a pseudonym which will replace Grievant’s name when
the decision is published to non-parties and the Commission’s website.
0520160261

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complaints filed under the 29 C.F.R. Part 1614 EEO complaint process, also applied to the
filing of grievances. Therefore, the Commission found that the merits of Grievant’s
discrimination claim needed to be addressed and remanded the matter to the Agency for a
supplemental investigation.

The Agency subsequently conducted an investigation and issued a new grievance decision in
March 2015. In its decision, the Agency clarified that the grievance was untimely based upon
Article 11, Section 6, of the Master Labor Agreement (MLA). The Agency determined that
the MLA required an employee seeking to file a grievance asserting discrimination to first raise
the allegation of discrimination with an EEO Counselor within 45 days of the event at issue.
The grievance must then be filed within 15 days of the conclusion of EEO counseling. The
Agency concluded that, applying this section of the MLA, Grievant’s claim of discrimination
was untimely raised and, therefore, his grievance should be dismissed as untimely.

Grievant appealed once again and, in Clinton R. v. Dep’t of the Navy, EEOC Appeal No.
0220150010 (Mar. 18, 2016), the Commission dismissed Grievant’s appeal finding that the
Commission does not have jurisdiction to review procedural determinations by an agency
solely related to the grievance process and the collective bargaining agreement.

In his request for reconsideration, Grievant expresses his disagreement with the previous
decision and reiterates numerous arguments previously raised on appeal. As the Commission
previously stated, the Commission has consistently held that it does not have jurisdiction to
review procedural determinations by an agency solely related to the grievance process and the
collective bargaining agreement, such as the timeliness of the filing of the grievance. Johnson
v. Equal Employment Opportunity Comm’n, EEOC Request No. 05910188 (Mar. 20, 1991);
see also Reese v. Dep’t of Agric., EEOC Request No. 05910133 (Mar. 20, 1991); see also
Reese v. Dep’t of Agric., EEOC Appeal No. 02970023 (Oct. 3, 2000). The Agency
procedurally dismissed the grievance at issue as untimely filed under the provisions of the
MLA. Consequently, the Commission has no jurisdiction to review Grievant's appeal
concerning the determination that his grievance was untimely filed under the terms of the
Agency's collective bargaining agreement.

The Commission emphasizes that a request for reconsideration is not a second appeal to the
Commission. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110) (Aug. 5, 2015), at 9-18; see, e.g., Lopez v. Dep't of Agric., EEOC Request
No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to
demonstrate that the appellate decision involved a clearly erroneous interpretation of material
fact or law, or will have a substantial impact on the policies, practices, or operations of the
Agency. Grievant has not done so here.

After reviewing the previous decision and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the
Commission to DENY the request. The decision in EEOC Appeal No. 0220150010 remains
0520160261

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the Commission's decision. There is no further right of administrative appeal on the decision
of the Commission on this request.

GRIEVANT’S RIGHT TO FILE A CIVIL ACTION (P0610)

This decision of the Commission is final, and there is no further right of administrative appeal
from the Commission’s decision. 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.

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

June 30, 2016
Date