Stevie R.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Finance & Accounting Service), Agency.

Equal Employment Opportunity Commission

Dec 18, 2018

2019000783 (E.E.O.C. Dec. 18, 2018)

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

Stevie R.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Defense Finance & Accounting Service),
Agency.

Appeal No. 2019000783

Agency No. DFAS-00005-2017

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated March 29, 2017, 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., and the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Accounting
Technician, GS-0525-05, at the Agency’s Accounting Systems Operations facility in Rome, New
York.

On January 27, 2017, Complainant filed a formal complaint alleging that the Agency subjected
him to discrimination on the bases of national origin (Hispanic), age (66), and reprisal for prior
protected EEO activity when:

1. On or about September 12, 2016, he was removed from his position.
2. On or about February 2016, the Union President called him a “damned liar” and a
“scum bag” in the presence of the Agency’s Director.

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.
2019000783

2

The Agency dismissed claim (1) pursuant to 29 C.F.R. § 1614.107(a)(4) for raising the same
claim in a grievance procedure. The Agency noted that Complainant filed a grievance on
September 21, 2016, regarding the removal action. Further, the Agency found that claim (2)
failed to state a claim and dismissed it pursuant to 29 C.F.R. § 1614.107(a)(1).

This appeal followed. On appeal, Complainant argued that his removal was improper. In
addition, Complainant provided a copy of the Step 3 decision dated November 16, 2016
regarding the removal action. The Step 3 decision denied Complainant’s grievance and his
request to overturn the Agency’s removal action.

In response, the Agency asked that the Commission affirm its dismissal. The Agency noted that
Complainant filed a grievance regarding his removal prior to filing his EEO complaint. Further,
while his grievance was pending, Complainant also filed an appeal with the Merit Systems
Protection Board (MSPB). The Agency indicated, without including a copy of the appeal, that
the MSPB dismissed the matter for lack of jurisdiction citing that Complainant filed a grievance
on the same matter.

ANALYSIS AND FINDINGS

As to claim (1), the Agency dismissed the claim pursuant to 29 C.F.R. § 1614.107(a)(4). 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.2 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 record clearly indicated that Complainant had filed an appeal of his removal through the
Agency’s negotiated grievance procedure. The Commission also obtained a copy of the MSPB’s
dismissal of Complainant’s appeal with the Board regarding the removal action.

2 The record included a copy of the Notice of Removal given to Complainant which provided his
rights to appeal the removal action. It noted that Complainant had the right to file, among other
rights, a grievance under the Negotiated Grievance Procedure. Further, it informed Complainant
that if he filed a grievance, he waved his right to an appeal with the MSPB or an EEO complaint.
Further, he was instructed that if he alleged discrimination in his grievance, he could file an
appeal with either the MSPB and/or the EEOC to review the final decision from the grievance
process. The copy in the record has been annotated by Complainant and the section instructing
Complainant on his rights were underlined and starred. As such, Complainant was made aware
of the ways he could raise his claims of discrimination through the various legal procedures.
2019000783

3
The MSPB noted that Complainant had filed a grievance and subsequently filed his appeal
before, the MSPB. Therefore, upon review of the record, we find that claim (1) was properly
dismissed by the Agency pursuant to 29 C.F.R. § 1614.107(a)(4).

The Agency dismissed claim (2) pursuant to 29 C.F.R. § 1614.107(a)(1). The regulation set
forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a
complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been discriminated
against by that agency because of race, color, religion, sex, national origin, age, disabling
condition, genetic information, or reprisal. 29 C.F.R. §§ 1614.103, .106(a). The Commission's
federal sector case precedent has long defined an "aggrieved employee" as one who suffers a
present harm or loss with respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).

Upon review, we find that Complainant has not sufficiently alleged that he was subjected to any
harm based on the asserted comments. Complainant has asserted that he was subjected to
unlawful retaliation for his prior protected activity. Regarding Complainant's claim of reprisal,
the Commission has stated that adverse actions need not qualify as "ultimate employment
actions" or materially affect the terms and conditions of employment to constitute retaliation.
See Burlington Northern and Santa Fe Railway Co. v. White, 548 U. S. 53 (2006) (finding that
the anti-retaliation provision protects individuals from a retaliatory action that a reasonable
person would have found “materially adverse,” which in the retaliation context means that the
action might have deterred a reasonable person from opposing discrimination or participating in
the EEOC charge process); see also Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410
(Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)). Upon review
of the record, we find that Complainant has not asserted that the alleged action was reasonably
likely to deter Complainant or others. As such, we find that dismissal of claim (2) was
appropriate.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision.

2019000783

4
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.

2019000783

5
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

December 18, 2018
Date