Michael J. Callahan, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior, Agency. Appeal No. 0120110309 Agency No. NPS-10-0211 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated September 17, 2010, 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. For the following reasons, the Commission AFFIRMS in part and REVERSES in part the Agency’s decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Motor Vehicle Operator at the Independence National Historical Park in Philadelphia, Pennsylvania. On April 30, 2010, Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination in reprisal for prior protected EEO activity when: 1. On January 11, 2010, Complainant’s supervisor issued him a letter of reprimand regarding a safety issue. In addition, Complainant alleged that the Agency subjected him to discrimination and a hostile work environment on the bases of race (Caucasian), national origin (not specified) and in reprisal for prior protected EEO activity when: 2. On May 30, 2008, his previous informal EEO contact information was posted on two bulletin boards. The Agency dismissed claim (1) pursuant to 29 C.F.R. § 1614.107(a)(4). The Agency determined that Complainant had previously raised this claim in a negotiated grievance procedure that permits allegations of discrimination. As to claim (2), the Agency dismissed this claim pursuant to 29 C.F.R. § 1614.107(a)(1). The Agency found that this claim was identical to that raised in Agency No. NPS-08-0298, which the Agency dismissed on September 1, 2009. As a result, the Agency dismissed the entire complaint. CONTENTIONS ON APPEAL On appeal, Complainant contends that he never chose to pursue claim (1) through the grievance procedure and never authorized anyone to pursue a grievance on his behalf. Complainant states that he never signed a grievance form and the first time he became aware that a grievance had been filed was when he received the decision letter. Accordingly, Complainant requests that the Commission reverse the final order. ANALYSIS AND FINDINGS As to claim (1), the Commission has previously held that an agency cannot deny a complainant his statutory and regulatory right to file an EEO complaint because the union exercised its right to file its own grievance pursuant to the terms of a Collective Bargaining Agreement. See Hicks v. Dep’t of the Air Force, EEOC Appeal No. 01980342 (June 21, 2000) (citing Rescio v. Dep’t of Transp., EEOC Appeal No. 01975288 (Sept. 5, 1998). Here, Complainant contends that the union filed the grievance regarding the issuance of the letter of reprimand without his knowledge and there is no indication from the record that Complainant was involved with the filing of the grievance. Therefore, the Commission finds that the Agency’s decision to dismiss claim (1) pursuant to 29 C.F.R. § 1614.107(a)(4) was improper. Regarding claim (2), the regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that the Agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission. Based on a review of the instant record, the Commission finds that the Agency properly dismissed claim (2) pursuant to 29 C.F.R. 1614.107(a)(1). The record reflects that Complainant previously raised this claim in a prior complaint and, in Agency No. NPS-08-0298, the Agency dismissed this claim as untimely filed. Accordingly, the Commission agrees with the Agency, that Complainant states the same claim that has been previously decided by the Agency. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Commission AFFIRMS the Agency’s dismissal of claim (2). However, the Commission REVERSES the Agency’s dismissal of claim (1), and REMANDS claim (1) for further processing in accordance with the Order below. ORDER (E0610) The Agency is ordered to process claim (1) in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claim within thirty (30) calendar days of the date this decision becomes final. 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 becomes final, 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. A copy of the Agency’s letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610) Compliance with the Commission’s corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency’s report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) 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 or within twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (Nov. 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (Z0610) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above (“Right to File a Civil Action”). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations January 5, 2012 Date 2 0120110309 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013