Shellie T.,1 Complainant,v.Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Sep 27, 2019

2019005347 (E.E.O.C. Sep. 27, 2019)

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

Shellie T.,1
Complainant,

v.

Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.

Appeal No. 2019005347

Agency No. 2019-28157-FAA-05

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) from an Agency decision, dated June 13, 2019, dismissing her complaint of unlawful
employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

During the relevant time, Complainant worked as an Accounting Technician at the Agency’s Mike
Monroney Aeronautical Center in Oklahoma City, Oklahoma.

Believing that she was subjected to discrimination based on her disability, Complainant contacted
an EEO Counselor. According to the Counselor’s Report, Complainant described her September
2018 grievance regarding the Agency’s processing of her reasonable accommodation request, as
well as the Agency’s responses. Informal efforts to resolve Complainant’s concerns were
unsuccessful. Subsequently, on December 19, 2018, Complainant filed a formal EEO 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 Agency framed the claim as follows:

On October 3, 2018 and October 26, 2018, Complainant received Agency letters
disapproving of her request for a telework reasonable accommodation and
disputing medical documentation she provided which indicated that telework was
an appropriate accommodation for her disability.

In its June 13, 2019 decision, the Agency dismissed the complaint pursuant to 29 C.F.R.
1614.107(a)(4), for raising the same matter that was previously raised in a negotiated grievance
procedure that permits allegations of discrimination. According to the Agency, the letters
referenced in, and submitted with, the formal EEO complaint are responses to a grievance filed by
Complainant (Grievance No. GREV201801961).

Complainant filed the instant appeal.

ANALYSIS AND FINDINGS

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.

The Agency dismissed the formal complaint on the grounds that it raised a matter that was the
subject of a grievance. We find, however, that the more appropriate analysis is whether the formal
complaint states a claim. Here, in her formal complaint Complainant describes her September 21,
2018 grievance regarding the Agency’s delays in processing, and ultimate rejection of her request
for a reasonable accommodation. She provides further detail, citing the Agency’s October 2, 2018
and October 26, 2018 correspondence. For example, in one letter the Agency stated that
“symptoms that manifest themselves at home are not related to the work environment” and
therefore “at-will telework in those instances is not appropriate.” According to Complainant, the
other letter expressed the Agency’s concern that if situational telework were granted she would
not be able to perform the essential functions of her job.

On appeal, Complainant states that the grievance was based on the Agency’s failure to provide a
reasonable accommodation, as well as the delays in processing her request. She argues, that the
EEO complaint is distinct in that it was filed “to address the aftermath from the grievance,
(emphasis added)” such as the Agency’s determination that she is not disabled and its
dissatisfaction with the medical documentation she provided.

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We find that the formal complaint is an impermissible collateral attack on the Agency’s Step 1 and
Step 2 decisions regarding Complainant’s September 21, 2018 grievance. The Commission has
held that an employee cannot use the EEO complaint process to lodge a collateral attack on another
proceeding. See Wills v. Dep’t of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman
v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv.,
EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to have raised
her challenges to actions which occurred during the grievance process was during that proceeding
itself. It is inappropriate to now attempt to use the EEO process to collaterally attack actions which
occurred during the grievance process.

CONCLUSION

The Agency’s final decision to dismiss the instant formal complaint 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.

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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. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

September 27, 2019
Date