U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Debbie V.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120160173 Agency No. 2003-0549-2015103141 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated September 11, 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 Human Resources Assistant at the Agency's Veterans Affairs Medical Center in Dallas, Texas. On June 9, 2015, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected her to discrimination on the bases of race, sex, age, and in reprisal for prior EEO activity when: 1. on July 22, 2013, she became aware she was subjected to wage discrimination; 2. beginning March 15, 2015, management officials attempted to intimidate and bully her into signing various personnel actions; 3. on March 27, 2015, management rendered its decision to suspend her for five days, from April 27, 2015 through May 1, 2015; 4. on April 3, 2015, she was reassigned as a Human Resources Assistant, GS-6 position including duties of processing Without Compensation (WOC) personnel packages; 5. on April 3, 2015, she was denied a promotion to an Employee Relations Retirement, GS-7 position; 6. on April 15, 2015, she was assigned duties; 7. on April 15, 2015, she was provided limited computer access and computer programs; 8. on April 21, 2015, she was not invited to the group celebration for all Human Resources Assistants for Administrative Day; 9. on April 22, 2015, the staffing supervisor told her not to attend a staff meeting because she belonged to the WOC section; 10. on April 23 and 24, 2015, the staffing supervisor reminded her every 30 minutes that she was suspended from April 1, 2015 through May 1, 2015, and to not report for duty; 11. on April 27, 2015, she was issued a 5-day suspension and reassigned to a different Human Resources Assistant position and 12. on May 28, 2015, the Processing Record Supervisor made disparaging remarks, aged based slurs and jokes to her concerning her prescription glasses. In its September 11, 2015 final decision, the Agency dismissed claims 1 - 10 for stating the same claim that was raised in a prior EEO complaint, pursuant to 29 C.F.R. § 1614.107(a)(1). Specifically, the Agency found that instant formal complaint raises the same matter in Agency Case No. 2003-0549-2015101777. The Agency dismissed claim 11 pursuant to 29 C.F.R. § 1614.107(a)(4), on the grounds that Complainant had raised these matters in a negotiated grievance procedure. Specifically, the Agency determined that on February 20, 2015, Complainant filed a third step union grievance concerning her 5-day suspension and the December 5, 2014 reassignment decision. The Agency further stated that on March 27, 2015, management issued a third step decision on the merits in which it was decided to suspend Complainant for five days effective April 27, 2015 through May 1, 2015, and reassign her to a different Human Resources Assistant position. Finally, the Agency dismissed claim 12 pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim, finding that Complainant was not aggrieved. The instant appeal followed. ANALYSIS AND FINDINGS Stating the same claim (claims 1 - 10) 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. It has been long established that "identical" does not mean "similar." The Commission has consistently held that in order for a complaint to be dismissed as identical, the elements of the complaint must be identical to the elements of the prior complaint in time, place, incident, and parties. See Jackson v. Department of the Air Force, EEOC Appeal No. 01955890 (April 5, 1996) rev'd on other grounds EEOC Request No. 05960524 (April 24, 1997). The record reflects that in her prior complaint (Agency Case No. 2003-0549-201510177), Complainant alleged that she was discriminated against on the bases of race, sex, age and in reprisal for prior protected activity when: 1. on October 1, 2014, she was placed on administrative leave pending the outcome of an investigation concerning alleged misconduct; 2. on October 2, 2014, she was issued a proposed 1-day suspension notice for accessing sensitive information without an official need; 3. on October 30, 2014, she was issued a notice of proposed demotion for assessing sensitive information without an official need and for placing inaccurate documentation in government records; 4. on December 4, 2014, she was issued a notice of a 5-day suspension in lieu of the proposed demotion, to be served from January 12-16, 2015; 5. on December 4, 2014, she received notice of reassigning to a Program Support Assistant, GS-6 position in Fisher House section; 6. on January 27, 2015, she received notice that her effective 5-day suspension dates were changed to March 2-6, 2-15; 7. on January 30, 2015, the Interim Human Resources Manager (IHR) called her about signing for the disciplinary action (Suspension and Reassignment); 8. on February 4, 2015, IHR and a Human Resources Supervisor (HRM) came to her duty assignment area and attempted to force her to sign for receipt of her disciplinary notice (Suspension and Reassignment); 9. on February 6, 2015, she received an "Excellent" grade in her performance appraisal rating for FY 2014 instead of the "Outstanding" rating she believe she was entitled to; 10. on March 12, 2015, she was issued the "final" effective dates of her 5-day suspension (March 30, 2015 to April 3, 2015) and reassignment (effective April 6, 2015); 11. on March 11, 2015, IHR and HRM came to her duty assignment area and attempted to force her sign for receipt of her disciplinary notice (Suspension and Reassignment); and 12. on April 3, 2015, she was issued "Direct Order" notice to report to Human Resources to be in compliance with the third step grievance decision. Here, the Agency properly dismissed claims 3, 6 and 7 in the instant complaint on the grounds that the matter raised therein is the same matter that was raised in the prior complaint, Agency Case No. 2003-0549-201510177, filed on March 13, 2015, alleging the same claims. The record supports a determination that Complainant had pursued these claims in a prior complaint on the bases of race, sex, age and in reprisal for prior EEO activity, and that the matters raised herein are but an elaboration of the matters raised in that prior complaint. However, a review of the specific events listed in that prior complaint reveals that none of the events identified in that complaint are the same events listed by Complainant in claims 1 - 2, 5 and 8 - 10 of the instant complaint, which are alleged to have occurred in July 2013, and from March 15, 2015 through July 2015. Therefore, we find that Complainant has not alleged these events as the same claims as her prior EEO complaint. Therefore, we find that the Agency's dismissal of claims 1 - 2, 5 and 8 - 10 was not appropriate. Negotiated grievance dismissal (claim 11) The regulation set forth at 29 C.F.R. § 1614.107(a)(4) provides that an agency may dismiss a complaint where the complainant has raised the matter in a negotiated grievance procedure that permits claims of discrimination and § 1614.301 indicates that the complainant has elected to pursue the non-EEO process. The Agency found that claim 11 was a subject of a union grievance filed by the union on Complainant's behalf. Specifically, the Agency stated that a third step union grievance was filed on February 20, 2015 concerning Complainant's 5-day suspension and December 5, 2014 reassignment decision. The Agency further stated that on March 27, 2015, management issued a third step decision on the merits in which it was decided to suspend Complainant for five days effective April 27, 2015 through May 1, 2015, and reassign her to a different Human Resources Assistant position. The Agency concluded that Complainant raised the matters in a negotiated grievance procedure and that claim 11 should therefore be dismissed. The record in the instant reflects that the above-referenced grievance was filed by the union pursuant to Article 42 of a negotiated agreement, which authorizes the filing of grievances by the union, and describes a procedure for such grievances. There is no evidence that complainant was involved in the filing of the grievance in this case, which appears to have been filed independently of Complainant. As such, the Agency has not established that Complainant made a valid election to pursue the grievance process rather than the EEO complaint process. See Rescio v. Department of Transportation, EEOC Appeal No. 01975288 (September 8, 1998); McLeod v. Department of Justice, EEOC Appeal No. 0120092979 (March 14, 2011). While Complainant may have participated in the union's grievance, we do not find such participation sufficient to meet the definition of "elect[ing] to pursue the non-process" referred to in §§ 1614.107 and 301. We note in this regard that § 301 states "an election to proceed under a negotiated grievance procedure is indicated by the filing of a timely written grievance." The language does not state that merely participating in a grievance filed by others, including the union filing on Complainant's behalf, as opposed to Complainant actively filing the grievance herself, constitutes an "election" under § 107(a)(4). Therefore, we find that the Agency improperly dismissed claim 11 on the grounds that Complainant had raised these matters in a negotiated grievance procedure. Failure to State a Claim (claim 12) The Agency improperly dismissed claim 12 for failure to state a claim. 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 or disabling condition. 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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Contrary to the manner in which the formal complaint was identified in the final decision, the instant formal complaint and EEO Counselor's Report reflect a series of alleged incidents that include Complainant being harassed by Agency management. Complainant, on appeal, stated that she is subjected to ongoing harassment. Complainant further stated "it is improper for the Agency to make a sweeping conclusion that the incidents do not rise to the level of a hostile work environment by making its own factual determinations and citing to no relevant case law." As a remedy, Complainant requested to be trained and promoted to the position of Employee Relations/Retirement/Benefits Specialist, GS-9, a full transfer, eight years of missed Special Contribution Awards, the responsible management officials resign/retire from Agency employment, compensatory damages and attorney's fees. By alleging a pattern of harassment, Complainant has stated a cognizable claim under the EEOC regulations. See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993). Accordingly, we AFFIRM the Agency's dismissal of claims 3, 6 and 7 for stating the same claim. We REVERSE the Agency's dismissal of claims 1 - 2, 5 and 8 - 10 for stating the same claim, claim 11 for electing the negotiated grievance process and claim 12 for failure to state a claim, defined herein as a harassment claim, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER (E0610) The Agency is ordered to process the remanded claims (harassment/hostile work environment) in accordance with 29 C.F.R. § 1614.108 et seq. 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 (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 (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 February 9, 2016 __________________ 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 0120160173 8 0120160173 9 0120160173