U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Brandee B.,1 Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0120160226 Agency No. HQ-15-0640-SSA DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated September 24, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND On September 21, 2014, Complainant was hired as a Legal Instrument Examiner at the Agency's Office of Research, Demonstration, and Employment Support, Office of Retirement and Disability Policy in Baltimore, Maryland, subject to one-year probationary period. On July 22, 2015, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected her to discrimination on the bases of sex, disability, and in reprisal for prior EEO activity when: a. on April 22, 2015 and June 2, 2015, her requests for reasonable accommodation were denied; b. since April 28, 2015, she never received a written response for her Family Medical Leave Act (FMLA) request; c. on May 7, 2015, she received a performance plan that indicated she demonstrated "adequate" communication and "adequate" share of work, and management never responded to her rebuttal regarding the statements; and d. on June 12, 2015, she was terminated from Agency employment. The record reflects that on June 12, 2015, the union filed a grievance on behalf of Complainant alleging that the Agency violated the collective bargaining agreement. However, the record reflects that the Agency rejected Complainant's grievance on the grounds that Complainant had been a probationary employee. Thereafter, Complainant filed the instant formal complaint on July 22, 2015. In its September 24, 2015 final decision, the Agency dismissed Complainant's 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 claims of discrimination. Complainant, on appeal, argues that the Agency erred in dismissing the formal complaint on the grounds that she had first raised the matter in a negotiated grievance procedure. Complainant acknowledge the filing of a grievance, but states that the Agency refused to process her grievance and "refused to issue a third step decision. Among the reasons stated was that, the grievance concerns the removal of a probationary employee and [such a matter] is not arbitrable. While the union whole hardily disagrees with this assertion, using [the Agency's] own logic, there was no grievance on the table when [Complainant] filed her EEOC complaint on July 22, 2015." Further, Complainant argues that if the Agency "was correct when denying the complaint and the grievance concerns discrimination [then] the grievance should be allowed to move forward as it touches discrimination on an issue that can be arbitrated for a temporary employee. The agency can not contradict themselves in their responses to [Complainant] and dismiss both matters for opposing contradictory reasons." The instant appeal followed. ANALYSIS AND FINDINGS 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. The record indicates that Complainant filed a grievance on June 12, 2015, on the same matters raised in her July 22, 2015 EEO complaint. However, the Agency did not process Complainant's grievance because of her probationary employee status. We cannot, under such circumstances, construe Complainant's attempt to pursue these issues through the grievance process as indeed "raising" a matter in that process, as contemplated by the above referenced regulation. Therefore, we find that the Agency improperly dismissed the formal complaint pursuant to 29 C.F.R. § 1614.107(a)(4). The Agency final decision dismissing the formal complaint is REVERSED. The formal complaint is REMANDED to the Agency for further processing in accordance with the ORDER below. ORDER The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. 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 (M0416) 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. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (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 September 21, 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 0120160226 2 0120160226