U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Leanne D,1 Complainant, v. Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency. Appeal No. 0120172973 Agency No. IRS-17-0454-F DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated August 3, 2017, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Tax Law Specialist at the Agency's Wage and Investment (W&I) Service Center in Philadelphia, Pennsylvania. On July 14, 2017, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on race, sex, age, and in reprisal for prior-protected EEO activity when: 1) On March 16, Complainant was not selected for a temporary promotion/detail as a GS-0987-11 Centralized Evaluative Review (CER) Lead Quality Review Specialist under (Announcement Number L-17-001); and 2) On May 9, 2017, Complainant's manager issued her a Counseling Memorandum concerning tardiness. Complainant initiated contact with the EEO counselor about these matters on April 4, 2017. On April 5, 2017, Complainant filed a grievance through her Agency's collective bargaining agreement with Complainant's union regarding the nonselection. On May 29, 2017. Complainant filed a second grievance regarding the memorandum of counseling In the instant final decision, the Agency dismissed Complainant's entire EEO complaint pursuant to 29 C.F.R. §1614.107(a)(4). The Agency determined that by filling grievances on both matters before raised then in her July 14, 2017 EEO complaint, Complainant had elected to pursue the matter through the negotiated grievance process in lieu of the EEO process. On appeal, Complainant contended that the Agency did not advise her that she could elect either the grievance process or both until after she had filed the first grievance. Further, Complainant stated that the Agency's election notice failed to explain that filing a grievance on the same matter was grounds for dismissal of her EEO claim. Instead, she believed that filing both the EEO complaint and the grievances would strengthen her effort to negotiate a favorable resolution on her claims. Complainant asserts that had she known that filing the grievances would undermine her EEO complaint, then she would have not filed the grievances and elected to file only the EEO complaint. 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, an employee must elect to raise the matter under either part 1614 or the negotiated grievance procedure, but not both. An employee who files a grievance with an agency whose negotiated agreement permits the acceptance of grievances which allege discrimination may not thereafter file an EEO complaint on the same matter. The regulation set forth at 29 C.F.R. § 1614.107(a)(4) provides that an agency may dismiss a complaint where a complainant has raised the same matters in a negotiated grievance procedure that permits claims of discrimination. In the instant case, the record revealed that Complainant filed grievances concerning both claims prior to filing her formal EEO complaint. Additionally, the terms of the collective bargaining agreement expressly stated that employees have the right to raise matters of alleged discrimination under the statutory (EEO) procedure or the negotiated grievance procedure, but not both. Therefore, we find Complainant elected the grievance procedure and that the Agency properly dismissed both of her EEO claims pursuant to 29 C.F.R. § 1614.107(a)(4). According to Complainant on appeal, the Agency's advisement on her election rights was inadequate. However, EEOC Regulation 29 C.F.R §1614.301(a) states that an employee who files a claim in a collective bargaining agreement grievance procedure cannot then file an EEO complaint "irrespective of whether the agency has informed the individual of the need to elect." Therefore, we are not persuaded by Complainant's appellant arguments. See Aragon v. Dep't of the Interior, EEOC Appeal No. 01985632 (Jul. 26, 1999) CONCLUSION We AFFIRM the Agency's final decision dismissing Complainant's complaint for the reason discussed above. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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.s signature Carlton M. Hadden, Director Office of Federal Operations January 31, 2018 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. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 4 0120172973