U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ashely S.,1 Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency. Appeal No. 0120152672 Agency No. ARSILL15APR01200 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated June 30, 2015, dismissing a formal 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 During the period at issue, Complainant worked as a Diagnostic Radiology Technologist at the Agency's US Army Medical Department Activity, Reynolds Army Community Hospital, Department of Radiology, Diagnostic Service in Fort Sill, Oklahoma. On April 6, 2015, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On May 28, 2015, Complainant filed a formal complaint alleging that she was subjected to harassment and a hostile work environment on the basis of race when: a. in April 2015, she asked the Major if he would give her a good job reference to which he stated with a smile that he would. In fact, the Major did the opposite, and she did not get the job; b. on April 22, 2015, her supervisor expected her to sign a memorandum falsely accusing her of leaving radiology students unsupervised and taking unauthorized breaks, again, without the courtesy or opportunity to discuss time, date or students left alone and to address accusations and memorandum content; c. on April 2, 2015, she relayed to her supervisor and the CPAC L/MER Specialist that a Radiology Student Coordinator (Coordinator) was creating a hostile work environment for her; yet, the following week, on or about April 9, 2015, she faced the Coordinator, among other panel members, in an interview to select a Radiology Department Quality Control Tech. The panel laughed and scoffed at her after the Coordinator asked "do people have a hard time understanding you, [Complainant]?;" d. on March 4, 2015, the supervisor attempted to serve her with a memorandum falsely accusing her of leaving radiology students unsupervised and taking unauthorized breaks, extended lunches and cell phone usage without the courtesy or opportunity to discuss time, date, or students left alone and address other accusations. The supervisor relented from serving her the memorandum after she refused to sign the memorandum and invoked her Weingarten Rights. The supervisor revised the memorandum into what she received on April 22, 2015; e. on February 5, 2015, the supervisor, with another supervisor (Supervisor 2), stated to her five minutes before departing for her 1500 appointment that she would not approve her leave for a last minute Indian Hospital medical appointment so she cancelled her appointment despite it being on the board for three days, and the supervisor's reason for denial was "I do not have to tell you the reason why I am disapproving you, because I am your supervisor." Supervisor 2 further stated, "you think you're special because you go to the Indian Hospital!;" f. in or about February 2015, Supervisor 2 publically humiliated her in front of the Radiology Department where several technicians and students were present, specifically telling a student, "Oh, you listened to [Complainant]? She doesn't know what she talking about" when using 14x17 film size for child instead of the 10x12 Supervisor 2 had told him to use without seeing the child; and g. in or about February 2015, she asked the Major for meaningful tasks to improve her evaluations in the manner he gave meaningful tasks to her peers to help them excel but he responded with "Oh [Complainant], why don't you just take some pictures of people on their birthdays!" On June 30, 2015, the Agency dismissed the formal complaint pursuant to 29 C.F.R. 1614.107(a)(4) on the grounds that Complainant first elected to file a grievance this matter in a grievance procedure that permits allegations of discrimination. The instant appeal followed. 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. The record indicates that Complainant filed a grievance on May 27, 2015, on the same matters raised in her May 28, 2015 EEO complaint. The grievance process permitted pursuit of discriminatory matters in the grievance process or in the EEO complaint process, but not both (Article 31 and Article 32, Section 9). The Agency's final decision dismissing Complainant's complaint for the reason stated herein is AFFIRMED.2 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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 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, 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 (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 December 1, 2015 __________________ Date 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. 2 Because we affirm the Agency's final decision to dismiss the instant formal complaint for the reason stated herein, we find it unnecessary to address alternative dismissal grounds (i.e. untimely EEO Counselor contact). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120152672 3 0120152672 5 0120152672