U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jed T,1 Complainant, v. W. Thomas Reeder, Director, Pension Benefit Guaranty Corporation, Agency. Appeal Nos. 0120181496 & 0120181497 Agency Nos. 18-005-F & 18-007-F DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decisions dated February 28, 2018, dismissing his complaints 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 At the time of events giving rise to this complaint, Complainant worked as an Auditor, GS-12 at the Agency's Financial Operations Division facility in Washington, D.C. Complainant applied for a promotion to the Financial Management Specialist, GS-0501-13, position posted under vacancy announcement number FOD-CCD-2017-0003 and 0002. On October 17, 2017, he was informed that he was not selected for the position. On October 31, 2017, Complainant contacted the EEO Counselor alleging discrimination. On February 7, 2018, Complainant filed a formal complaint, namely Agency No. 18-0005-F, alleging that the Agency subjected him to discrimination on the bases of race (African-American), sex (male), color (Black), age (60), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 when, on October 17, 2017, Complainant was informed that he was not selected for promotion to the Financial Management Specialist, GS-0501-13, position posted under vacancy announcement number FOD-CCD-2017-0003 and 0002. Subsequently, on January 8, 2018, Complainant was informed that the Agency made a second selection for the position of Financial Management Specialist, GS-0501-13, posted under vacancy announcement number FOD-CCD-2017-0003 and 0002. On January 9, 2018, he contacted the EEO Counselor alleging discrimination. On February 12, 2018, Complainant filed second EEO complaint, namely Agency No. 18-0007-F, alleging discrimination on the bases of race (African-American), sex (male), color (Black), age (60), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 when, on January 8, 2018, Complainant was informed that he was not selected for promotion to the Financial Management Specialist, GS-0501-13, position posted under vacancy announcement number FOD-CCD-2017-0003 and 0002. The Agency dismissed both complaints pursuant to 29 C.F.R. § 1614.107(a)(4) noting that Complainant has also filed a grievance on the non-selection pursuant to the position posted under vacancy announcement number FOD-CCD-2017-0003 and 0002. Complainant appealed acknowledging that he filed a grievance. However, the Agency dismissed the grievance as "nongrievable." As such, Complainant asked that the Commission reverse the Agency's final decisions. The Agency requested that the Commission affirm its dismissal decisions. As such, for the sake of administrative economy, we have consolidated Complainant's appeals in a single decision. 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. 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 case, it is clear that Complainant raised matters relating to his non-selections in the grievance process. However, there is no copy of the collective bargaining agreement in the record. Thus, it is impossible to determine whether claims of discrimination may be raised in the grievance process. In Ericson v. Dep't of the Army, EEOC Request No. 05920623 (Jan. 14, 1993), the Commission stated that "the agency has the burden of providing evidence and/or proof to support its final decisions." See also Gens v. Department of Defense, EEOC Request No. 05910837 (Jan. 31, 1992). The Agency has not done so here. However, we note that Complainant had provided copies of the Collective Bargaining Agreement. As such, we caution the Agency that failure to provide the documents required to support its final decision could result in a reversal by the Commission. Since Complainant has provided the documents to the Commission, we shall address the Agency's dismissal of the formal complaints pursuant to 29 C.F.R. § 1614.107(a)(4). The record clearly indicates that Complainant filed a grievance on the same matters raised in his EEO complaints. However, the Agency did not process Complainant's grievance. The copy of the Collective Bargaining Agreement provided by Complainant states that the agreement excluded grievances on "non-selection for promotion from a group of properly rated and ranked candidates." As such, the record showed that the grievance was dismissed by the Agency as nongrievable. 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). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decisions and REMAND the formal complaints for further processing in accordance with the ORDER below. ORDER (E0618) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. 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 was issued, 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. As provided in the statement entitled "Implementation of the Commission's Decision," the Agency must send to the Compliance Officer: 1) a copy of the Agency's letter of acknowledgment to Complainant, 2) a copy of the Agency's notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant's request for a hearing, a copy of complainant's request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0618) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission's corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency's final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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 (M0617) 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. 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 (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 July 12, 2018 __________________ 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 0120181496 7 5 0120181496 & 0120181497