Salvatore B.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Headquarters), Agency.

Equal Employment Opportunity Commission

Nov 13, 2018

0120171241 (E.E.O.C. Nov. 13, 2018)

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

Salvatore B.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Headquarters),
Agency.

Appeal No. 0120171241

Agency Nos. HS-HQ-25163-2016,
HS-HQ-26848-2016

DECISION

Complaint 1: Agency No. HS-HQ-25163-2016

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated December 29, 2016, dismissing his 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.

At the time of events giving rise to this complaint, Complainant worked as a Physical Security
Specialist, GS-0083-12, at the Agency’s Federal Protective Service (FPS) Region 4 facility in
Atlanta, Georgia. On February 4, 2016, Complainant filed a formal complaint alleging that the
Agency subjected him to discrimination on the bases of race (African-American) and sex (male)
when on November 6, 2015, Complainant became aware that another FPS employee in job series
GS-0083 was receiving Law Enforcement Officer (LEO) pay and retirement benefits while
performing the same or similar duties as Complainant.

On November 25, 2015, Complainant filed a civil action (identified as Civil Action No.
1:15cv4137) in the United States District Court for the Northern District of Georgia. The record
further discloses that the claims raised therein are the same as those raised in the instant complaint.

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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The regulation found at 29 C.F.R. § 1614.409 provides that the filing of a civil action “shall
terminate Commission processing of the appeal.” Commission regulations mandate dismissal of
the EEO complaint under these circumstances so as to prevent a Complainant from simultaneously
pursuing both administrative and judicial remedies on the same matters, wasting resources, and
creating the potential for inconsistent or conflicting decisions, and in order to grant due deference
to the authority of the federal district court. See Stromgren v. Dep’t of Veterans Affairs, EEOC
Request No. 05891079 (May 7, 1990); Sandy v. Dep’t of Justice, EEOC Appeal No. 01893513
(October 19, 1989); Kotwitz v. U.S. Postal Serv., EEOC Request No. 05880114 (October 25,
1988). The Agency dismissed Complainant’s EEO complaint because it raised the same claim as
his then-pending civil action. The District Court’s records indicate that Complainant’s Title VII
claim was subsequently dismissed for failure to state a claim. Accordingly, we AFFIRM the
Agency’s decision dismissing Agency No. HS-HQ-25163-2016. See 29 C.F.R. § 1614.409.

Complaint 2: Agency No. HS-HQ-26848-2016

Although Complainant’s timely appeal and subsequent contentions on appeal reference Agency
No. HS-HQ-25163-2016 and discuss the procedural dismissal of his claim, Complainant also
references the subject matter of Agency No. HS-HQ-26848-2016, a complaint of unlawful
employment discrimination in violation of the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq.

On August 30, 2016, Complainant filed a formal complaint alleging that the Agency subjected him
to discrimination on the basis of age (over 40) when on May 20, 2016, Complainant received a
letter of official reprimand. According to the record, the Agency had not yet accepted for
investigation or dismissed this complaint. Pursuant to 29 C.F.R. § 1614.401(a), a complainant may
only file an appeal from an Agency dismissal or final decision of his complaint. Therefore, to the
extent Complainant is appealing this matter, his appeal is premature and is DISMISSED by the
Commission.2

2 On appeal, the Agency provides documentation that on June 1, 2016, Complainant grieved the
letter of reprimand pursuant to a collective bargaining agreement that permits employees to file a
grievance or an employment discrimination complaint, but not both. According to the record, the
matter is currently pending before the Federal Labor Relations Authority (FLRA). 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 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. Because Complainant
filed a grievance prior to filing this EEO complaint, he has elected this procedure.

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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 has jurisdiction over appeals from grievance decisions in limited circumstances.
EEOC Regulation 29 C.F.R. § 1614.401(d) provides that a grievant may appeal to the Commission
from a final decision of the agency, an arbitrator, or the FLRA on a grievance when an issue of
employment discrimination was raised in a negotiated grievance procedure that permits such issues
to be raised, but requires the complainant to proceed on the discrimination claims under either the
grievance process or the EEO process, but not both. In these circumstances, the Commission will
only review that portion of the decision which pertains to the grievant’s employment
discrimination claim, as it does not have jurisdiction over any alleged violations of a collective
bargaining agreement. See 29 C.F.R. § 1614.301(a). Therefore, when Complainant has received a
final decision of the Agency, an arbitrator, or the FLRA regarding his grievance, he may file
another appeal from that decision with this Commission.
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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. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

November 13, 2018
Date