U.S. Equal Employment Opportunity Commission
Office of Federal Operations
COMPLAINANT,
v.
ROBERT MCDONALD, SECRETARY, DEPARTMENT OF VETERANS AFFAIRS, AGENCY.
Appeal No. 0120142429
Agency No. 200H06322014101822
October 21, 2014
 
DECISION
 
Complainant filed a timely appeal with this Commission from the Agency's decision dated May 13, 2014, dismissing her 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.
  
BACKGROUND
 
At the time of events giving rise to this complaint, Complainant worked as a Program Support Assistant at the Agency's Medical Center in Northpoint, New York.
 
On March 28, 2014, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of sex (female) when, on November 8, 2013, Complainant was given a performance rating of "Fully Successful."
 
The Agency dismissed the complaint pursuant to 29 C.F.R. 1614.107(a)(4) finding that Complainant had filed a second step grievance on December 19, 2013. The grievance decision was issued on January 16, 2014. As such, the Agency found that Complainant elected to pursue the matter through the grievance process first. Therefore, the Agency dismissed the matter pursuant to 29 C.F.R. 1614.107(a)(4).
 
Complainant appealed asserting that no formal grievance was filed. As such, she requested that the Agency's final decision be reversed. The Agency requested that the Commission affirm its decision.
  
ANALYSIS AND FINDINGS
 
The Agency dismissed the formal complaint 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. An aggrieved employee who files a grievance with an agency whose negotiated agreement permits die 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.
 
Complainant contends that she did not file the grievance. Complainant acknowledged that she indeed had sought assistance from her union representative. However, inquiries made by the union representative were not pan of a formal grievance. Complainant clearly stated that she sought a review of her performance appraisal pursuant to Agency's Handbook under section ""5013." The record provided by the Agency supports this assertion. Email correspondence between the EEO Office and another Union Official shows that Section 5013 is only available to those employees who are not covered by the Negotiated Procedure. The Union Official intimated that any appeal of the performance appraisal for Complainant should have been handled by the negotiated grievance procedure for Complainant is a bargaining unit employee. However, there is no indication or evidence in the record that shows that a grievance was filed by Complainant or on her behalf.
 
The Agency failed to provide any copy of a grievance or a response to the alleged grievance. At all times, the Agency carries the burden of supporting its final decision to dismiss a compliant with evidence in the record. Gens v. Dep't of Defense, EEOC Request No. 05920837 (Jan. 31, 1992). Thus, the Agency has failed to substantiate the bases for its final decision. See Marshall v. Dep't of the Navy, EEOC Request No. 05910685 (Sept. 6, 1991).
  
CONCLUSION
 
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the matter for further processing in accordance with the ORDER below.
  
ORDER (E0610)
 
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 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 (November 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 (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.
  
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