U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Beth G.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs (Veterans Benefits Administration), Agency. Appeal No. 0120170983 Agency No. 200J-0331-2017-100161 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated December 28, 2016, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Claims Examiner at the Agency's facility in St. Louis, Missouri. On December 2, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (Caucasian), sex (female), and disability. In its final decision, dated December 28, 2016, the Agency determined that Complainant's complaint was comprised of the following claim: On September 16, 2016, her reasonable accommodation request was denied, but an interim accommodation that did not include telework was approved. The Agency dismissed Complainant's complaint on the grounds Complainant previously raised this matter in the grievance process. Specifically, the Agency stated that the union filed a grievance on Complainant's behalf with respect to this matter on September 28, 2016. 2 The instant appeal followed. On appeal, Complainant asserts that we should reverse the Agency's final decision dismissing her complaint. Complainant asserts that the Agency has misrepresented her EEO claim. Complainant states that her EEO complaint is that black females who are disabled are accommodated; whereas, Complainant, as a white disabled employee, is not accommodated. Complainant states that her EEO claim is separate from her grievance and needs to be addressed under Title VII. In response, the Agency requests that we affirm its final decision dismissing Complainant's complaint. ANALYSIS AND FINDINGS We find that the Agency properly dismissed Complainant's complaint on the grounds that this matter has been previously raised in the grievance process. 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 the 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. In the instant matter, Complainant filed a grievance on September 28, 2016, regarding the Agency's failure to provide her a reasonable accommodation by denying her telework request. Specifically, Complainant's first step grievance dated September 28, 2016, states that the grievance is regarding "the Agency's denial of [Complainant's] request to [telework] at home due to disabilities..." The record reflects that the collective bargaining agreement permits claims of discrimination to be raised. Complainant asserts that her formal EEO complaint is distinct from her grievance because she is alleging disabled employees were treated differently based on their race. However, we are not persuaded by Complainant's assertion. The grievance and the EEO complaint were clearly on the same matter, the Agency not granting Complainant's telework request as a reasonable accommodation. Complainant adding race as a basis to her EEO complaint does not alter Complainant's initial election of the grievance process with respect to her claim that the Agency denied her telework request as a reasonable accommodation. Based on the foregoing, we find that Complainant previously raised this matter in the grievance process on September 28, 2016, prior to her formal EEO complaint filed on December 2, 2016. Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint. 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 (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 March 30, 2017 __________________ 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 The record reflects that via email dated December 19, 2016, Complainant asserted that the union filed the grievance on her behalf. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120170983 4 0120170983