Woodrow F.,1 Complainant,v.W. Thomas Reeder, Director, Pension Benefit Guaranty Corporation, Agency.

Equal Employment Opportunity Commission

Dec 20, 2018

0520180554 (E.E.O.C. Dec. 20, 2018)

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

Woodrow F.,1
Complainant,

v.

W. Thomas Reeder,
Director,
Pension Benefit Guaranty Corporation,
Agency.

Request Nos. 0520180554; 0520180555

Appeal Nos. 0120181496; 0120181497

Agency No. 18007F

DECISION ON REQUEST FOR RECONSIDERATION

The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in consolidated EEOC Appeal Nos. 0120181496 and
0120181497 (July 12, 2018). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29
C.F.R. § 1614.405(a), 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).

In his underlying complaints, Complainant alleged that the Agency subjected him to unlawful
discrimination on the bases of his race (African-American), sex (male), color (Black), age and in
reprisal for prior protected EEO activity when, on October 17, 2017, he was informed that he was
not selected for promotion to the Financial Management Specialist, GS-0501-13, position posted
under Vacancy Announcement No. FOD-CCD-2017-0003 and 0002; and on January 8, 2018, he
was informed that he was again not selected for promotion when the Agency made a second
selection from the same vacancy announcement.

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.
0520180555

2
In its final decision, the Agency dismissed the complaints, pursuant to 29 C.F.R. § 1614.107(a)(4),
as barred by the doctrine of election of remedies since Complainant had filed grievances
challenging the non-selections prior to filing his EEO complaints. On appeal, the Commission
reversed the Agency’s dismissals, finding 29 C.F.R. § 1614.107(a)(4) to be inapplicable because
the collective bargaining agreement explicitly excluded from the grievance process non-selection
decisions of the type involved here.

In its request for reconsideration, the Agency argues that § 1614.107(a)(4) applies because, by its
terms, that section requires dismissal of any EEO complaint filed after a complainant has
previously “raised” the same matter in a negotiated grievance procedure that permits allegations
of discrimination. The Agency’s position is not well taken and ignores directly apposite
Commission precedent. The Commission has held that where, as here, a matter raised in a
grievance procedure is held to be nongrievable, § 1614.107(a)(4) is inapplicable and an EEO
complaint raising the same claim may not be dismissed on election of remedy grounds. See,
Johnson v. Dep’t of Transp., EEOC Appeal No. 0120101620 (Aug. 17, 2010) (“where an employee
files a grievance prior to filing an EEO complaint, but the grievance was denied on the grounds
that the subject matter of the grievance was not a grievable matter, complainant did not make a
true election.”). We find that Complainant’s arguments do not demonstrate that the consolidated
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. Accordingly, we find
that Complainant has failed to demonstrate that the Commission should reconsider its appellate
decision.

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 Nos. 0120181496 & 0120181496 remains the
Commission's decision. There is no further right of administrative appeal on the decision of the
Commission on this request. The Agency shall comply with the Order as set forth below.

ORDER (E0618)

The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108.
The Agency shall acknowledge to the Complainant that it has received the remanded claims within
thirty (30) calendar days of the date this decision was issued. The Agency shall issue to
Complainant a copy of the investigative file and also shall notify Complainant of the appropriate
rights within one hundred fifty (150) calendar days of the date this decision was issued, unless
the matter is otherwise resolved prior to that time. If the Complainant requests a final decision
without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of
Complainant's request

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As provided in the statement entitled “Implementation of the Commission's Decision,” the Agency
must send to the Compliance Officer: 1) a copy of the Agency's letter of acknowledgment to
Complainant. 2) a copy of the Agency's notice that transmits the investigative file and notice of
rights, and 3) either a copy of the complainant's request for a hearing, a copy of complainant's
request for a FAD, or a statement from the agency that it did not receive a response from
complainant by the end of the election period.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the
Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting
documentation when previously not uploaded, and the Agency must send a copy of all submissions
to the Complainant and his/her representative.
If the Agency does not comply with the Commission’s order, the Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has
the right to file a civil action to enforce compliance with the Commission’s order prior to or
following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and
29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on
the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp.
IV 1999). If the Complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610)

This is a decision requiring the Agency to continue its administrative processing of your complaint.
However, if you wish to file a civil action, you have the right to file such action in an appropriate
United States District Court within ninety (90) calendar days from the date that you receive this
decision. In the alternative, you may file a civil action after one hundred and eighty (180)
calendar days of the date you filed your complaint with the Agency, or filed your appeal with the
Commission. 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. Filing a civil action will terminate the administrative processing of your
complaint.
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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 20, 2018
Date