The DIGEST Of Equal Employment Opportunity Law

Volume XVIII, No.4

Office of Federal Operations

Fall Quarter 2007

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Inside

Selected EEOC Decisions on:

Article

A CASE UPDATE: THE GRIEVANCE PROCESS VS. THE EEO PROCESS

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SELECTED EEOC DECISIONS

Attorney's Fees

(See also, "Findings on the Merits," and "Remedies," this issue. – Ed.)

Class Actions

Agency Decision to Hold Complaint in Abeyance is Appealable. A final agency decision (FAD) informed complainant that her complaint was being held in abeyance pending the possible certification of a class action complaint of retaliation because her complaint alleged reprisal. The Commission accepted jurisdiction, finding that a complainant may appeal an agency decision to hold an individual complaint in abeyance during the processing of a related class complaint. Upon review, the Commission ordered the agency to continue processing the individual complaint, because the Commission had previously found that the class complaint at issue failed to meet the requirements for class certification. Lashawn Sumpter v. Department of Justice, EEOC No. 0120072851 (August 17, 2007).

Compensatory Damages

(See "Findings on the Merits," and "Remedies," this issue. – Ed.)

Direct Evidence

(See "Findings on the Merits" –Ed.)

Dismissals

(See by category, this issue.—Ed.)

Findings on the Merits

--Under the ADEA—

Agency Fails to Meet Its Burden of Production in Nonselection Case Based on Age. The Commission found that the agency failed to produce a legitimate nondiscriminatory reason under applicable Supreme Court precedent for its failure to hire the complainant for two of the four vacancies to which she applied. After the complainant established her prima facie case of age discrimination, the agency attempted to meet its burden of production by explaining that the complainant was not considered for two of the positions because she was not among the top three candidates as required by OPM's "rule of three," and was not chosen for the other two positions because the selectees were "name requested." Name requesting is a practice where managers ask that a specific applicant be hired based on the manager's familiarity with the applicant's work. While the Commission found no discrimination in the two selections where the complainant failed to qualify among the top three candidates, it rejected the agency's justification for the other hirings because, even after being given the opportunity to conduct a supplemental investigation, the agency did not identify the individuals who "name requested" the selectees for the two vacancies for which complainant was among the top three candidates.

Although the Commission had previously found that "name requesting" constituted a legitimate, nondiscriminatory reason for choosing selectees, in those cases, the agencies provided substantially more detail about the reasons that the selectees were preferred to the complainants and therefore were name requested. Here, however, the Commission found that the record was utterly devoid of testimony that would explain the basis for the alleged "name requests." There were no details about why the selectees were name requested and complainant was not. Further, the Commission found that at least one of the selectees received a lower score during the application process than complainant. Accordingly, the Commission found that the agency failed to set forth, with sufficient clarity, a legitimate reason for why it failed to select complainant. Therefore, the Commission found that the agency discriminated against complainant based on age and ordered the agency to offer her a position for which she was not selected, with back pay, interest, and other benefits due her. The Commission also ordered the agency to provide EEO training to the individuals involved in the selection process regarding their obligations pursuant to the ADEA, as well as to consider taking appropriate disciplinary actions against the responsible management officials. The Commission noted that compensatory damages and attorney's fees and costs are not available under the ADEA. Finally, the Commission also ordered the agency to post a notice that a violation of the ADEA had occurred. Olga E. Goldberg v. Department of State, EEOC Appeal No. 0120052592 (July 23, 2007).

--Under the Rehabilitation Act—

Denial of Reasonable Accommodation. Complainant, who worked for the agency as a Reactor Systems Engineer, was diagnosed with degenerative disc disease. Complainant provided the agency with a report from his doctor, which recommended a number of adjustments to complainant's working conditions, including being able to lie on his desk surface when he experienced increasing pain. The agency denied the request, and also denied complainant regular use of the Health Unit to rest his back for a period of time. The Commission noted that it appeared that the agency denied complainant use of the health unit for approximately one and one-half years solely because his doctor did not specifically request the use of the Health Unit. Further, even after the complainant provided further medical documentation that suggested he rest in the Health Unit, the agency took no action on this request. The Commission found that the medical documentation initially provided by complainant was sufficient to support his need for periodic rest at the Health Unit, and the agency violated the Rehabilitation Act by failing to show that allowing him to use the Health Unit would be an undue hardship.

Complainant also requested a permanent work at home plan as an accommodation, and provided medical documentation in support of his request. According to the record, complainant had previously worked successfully at home. Complainant's supervisor initially did not respond to the request, and another official then made several requests for additional information. The agency approved a work at home plan only after complainant sustained an injury at work over two years later. The Commission noted that while the agency is not required to provide complainant with the work at home plan of his choice, it is required to provide an effective accommodation. In this case, the agency violated the Rehabilitation Act again by failing to provide an effective accommodation for over two years, and offering no explanation for the delay. The agency was ordered to conduct an investigation as to complainant's claim for compensatory damages, and provide training for the responsible officials. Robert A. Spence v. Nuclear Regulatory Commission, EEOC Appeal No. 0120041082 (August 2, 2007), request for reconsideration denied 0520070907(July 9, 2008)

Denial of Reasonable Accommodation. The Commission found that the agency denied complainant, who had asthma, reasonable accommodation during a period when the agency was undergoing building renovations. Specifically, during that time, complainant submitted a request to work at home in order to avoid exposure to fumes from paint, glue and other construction materials. Complainant continued to work during the renovations, and the approving official stated that he never received complainant's request from the supervisor or the Director. According to the record, another employee was allowed to work at home for a period of one year as a reasonable accommodation. While the agency asserted that complainant could have worked at the District Office, or in another office space in the same facility, the record did not show that those options were ever presented to complainant. Further, the agency chose to place complainant into different office space on the same floor where the renovations were taking place. Finally, the agency failed to show that allowing complainant to work at home would have been an undue hardship. The agency was ordered to reinstate any sick or annual leave complainant used during the period in question, and investigate her claim for compensatory damages. Marchia L. Williams v. Social Security Administration, EEOC Appeal No. 0120054126 (October 4, 2007).

Agency Failure to Act in Good Faith With Regard to Reasonable Accommodation Subjects it to Liability for Compensatory Damages. Complainant had insulin dependent diabetes, a condition that affected his endocrine system, which, when not functioning within normal limits, periodically limited his ability to perform one or more of life's major activities. Complainant worked as a Distribution/Window Clerk and was assigned to a 14-hour split-shift schedule in which he worked the usual total of 8 hours a day; however he did so by working some of those hours, then taking a break, and then resuming work again later in the day. Complainant sought a straight 8-hour schedule as a reasonable accommodation, which was denied by the agency. The Commission found that complainant's diabetes was an impairment and found that there was ample documentary and testimonial evidence establishing that complainant's diabetes substantially limited him in the major life activity of eating. Although the FAD found that complainant was not "qualified" for his job because he could not meet the most essential duty of his position, namely, availability to work any shift or any day, the Commission found that the record evidence did not establish that such purported requirement was an essential function of complainant's position. Other than availability, the agency did not assert or argue that complainant was unable to perform any essential function of the position.

The Commission further found that, although the agency asserted that undue hardship would result from granting the accommodation, the agency did not provide specific information concerning exactly what the cost would be to the agency if it were to provide the accommodation; nor did it provide information concerning the overall budget of the facility or the agency. The Commission found that the agency did not act in good faith in attempting to accommodate complainant and that complainant raised a cognizable claim for compensatory damages. The Commission reversed the FAD and remanded the case to the agency to provide complainant with a schedule that complies with his medical limitations and conduct a supplemental investigation on the issue of complainant's entitlement to compensatory damages. Robert E. Preston v. United States Postal Service, EEOC Appeal No. 0120054230 (August 9, 2007), request for reconsideration denied, EEOC Request No. 0520080026 (November 29, 2007).

Nonselection. The Commission found that complainant was subjected to disability discrimination when he was medically disqualified for a Police Officer position. Complainant, who had a heart murmur, was initially selected for the position. Subsequently, he underwent a pulmonary function test, and was found fit for duty. He was then examined by two cardiologists, neither of whom recommended any restrictions on his activities. Nevertheless, the agency's Medical Officer concluded that complainant was not qualified for the position after reviewing his records. On appeal, the Commission found that the agency regarded complainant as an individual with a disability. Specifically, the Commission stated that the agency regarded complainant as being substantially limited in the major life activity of working, due to the perceived inability to work in a broad range of jobs requiring strenuous activity. The Commission rejected the agency's assertion that complainant posed a direct threat, noting that he had no current physical limitations or restrictions. As stated, several doctors found that complainant was fit for duty. The agency failed to address the duration, nature, severity, or likelihood of potential harm. Thus, the agency's denial of employment violated the Rehabilitation Act. The agency was ordered, in part, to pay complainant back pay with interest pursuant to the Back Pay Act, $3,000.00 in compensatory damages, $5,926.40 for lost overtime and $4,330.00 in attorney's fees. James D. Vavrek v. Department of Justice, EEOC Appeal No. 07A40068 (November 1, 2007), request for reconsideration denied, EEOC Request No. 0520080216 (February 4, 2008).

Perception of color is not a major life activity. Complainant applied for a security screener position with the agency and was required to participate in a two-part hiring process. Phase II included a color perception test, which the agency determined she had not passed. The complainant later underwent testing by a private optometrist, who determined that complainant was not color blind. During the hearing stage, the agency informed the Administrative Judge (AJ) that it had re-analyzed the results of complainant's initial test and determined them to have been erroneous; it nonetheless argued that this error did not give rise to a Rehabilitation Act claim. The Administrative Judge (AJ) granted summary judgment to the agency on the Rehabilitation Act claim. On appeal, complainant argues that the agency incorrectly believed her to be color blind and that it unlawfully "regarded [her] as" having an impairment. The Commission noted that the "regarded as" definition of "disability" under its regulations is satisfied if the employer "erroneously believes the individual has a substantially limiting impairment that the individual actually does not have." Affirming the AJ's grant of summary judgment, the Commission found that perception of color is not a major life activity and, therefore, the complainant has not shown that the agency regarded her as being substantially limited in seeing or in any other major life activity. Marian Adams v. Department of Homeland Security, EEOC No. 0120054463 (August 31, 2007) (The Commission also reversed the AJ's grant of summary judgment for complainant's Title VII and ADEA claims because the record had not been sufficiently developed to support a decision without a hearing).

--Under Title VII--

Sexual Harassment Found. The Commission found that complainant was subjected to sexual harassment by her supervisor's attempt to solicit sexual favors in exchange for employment advancement and his inappropriate comments. The Commission noted that the agency's own Office of the Inspector General completed an investigation into complainant's allegations, and concluded that she had been sexually harassed. Nevertheless, the Commission noted that the agency failed to complete the investigation until approximately six months after complainant made her allegations, and failed to take any corrective action in the interim to end the harassment, despite complainant having obtained a temporary restraining order against the supervisor. Thus, the Commission concluded that the agency failed to take immediate and appropriate corrective action. The Commission awarded complainant $125,000.00 in non-pecuniary compensatory damages, based upon evidence that complainant suffered severe emotional harm, stress, fear, depression, and loss of self-esteem as a result of the harassment. The agency was also ordered to pay complainant $70,257.00 in attorney's fees, and establish policies and procedures related to sexual harassment. Julia Davis v. Department of Homeland Security, EEOC Appeal No. 0720060003 (June 18, 2007), request for reconsideration denied, EEOC Request No. 0520070778 (September 25, 2007).

--Under Multiple Bases--

Sex, Race, and Reprisal Discrimination Found. Complainant, a registered nurse, filed a formal complainant alleging that she was subjected to race (African-American) and sex discrimination when she was reassigned to a "floating technician" position. Complainant subsequently amended her complaint to include an allegation of retaliatory harassment. Following a hearing, an EEOC Administrative Judge (AJ) found that complainant was subjected to discrimination and harassment on the bases of sex and reprisal. The Commission affirmed the AJ's finding on appeal. The Commission found that the Assistant Nurse Manager verbally attacked complainant and was physically intimidating towards her and other female employees to a degree sufficiently severe or pervasive to establish a hostile work environment on the basis of sex. The Commission also found that the Assistant Nurse Manager gave complainant less favorable assignments in retaliation for her report of the hostile work environment. Further, although the Assistant Nurse Manager was demoted after complainant reported the harassment, he continued to perform charge desk duties, where he harassed complainant and gave her less favorable assignments. The Commission also credited complainant's assertion that the Assistant Nurse Manager told her that she should drop her EEO case, and later stated at a meeting that he "was not going anywhere, because it couldn't be proven he had done anything wrong." The Commission found the Assistant Nurse Manager's comments to be the type of activity that is reasonably likely to deter protected activity, and, thus, a violation of the Title VII prohibition against reprisal. The Commission awarded complainant $8,000.00 in non-pecuniary compensatory damages, and ordered the agency to provide training to the named management officials. Esque Walker v. Department of Veterans Affairs, EEOC Appeal No. 0720070033 (July 17, 2007).

Disability Discrimination and Retaliation Found in Time and Attendance. The Commission refused to review the Administrative Judge's finding that complainant was subjected to disability discrimination and reprisal when she was charged with being absent without leave (AWOL) from August 2002 until December 2002, because neither party contested the finding on appeal. It nonetheless noted that the AJ's finding was based on record evidence that complainant was diagnosed with Depression and General Anxiety Disorder, and that, on the eve of another EEO hearing, her supervisor told her that she needed medical documentation to remain in leave without pay status, but proceeded to charge her with AWOL even though complainant provided a letter from her psychologist. The AJ found that the agency failed to articulate how the psychologist's letter was insufficient to continue complainant in leave without pay status, and the supervisor never adequately explained his rationale for charging complainant with AWOL. Further, the AJ explained that the agency never notified complainant that it had done so. The Commission did address the damages due to complainant for the AJ's finding of discrimination, ordering the agency to pay complainant $2,000.00 in compensatory damages, and ordering that a hearing be held to determine whether she was entitled to any additional damages. The Commission also affirmed the AJ's findings that the agency had not discriminated against complainant by charging her with AWOL for a subsequent period of time, threatening her with removal, or ultimately terminating her employment. Sheila J. Sullivan v. Department of the Army, EEOC Appeal No. 0120055812 (October 5, 1007).

Direct Evidence: Sex Discrimination and Retaliation with Regard to Work Assignments. Complainant filed a formal complaint alleging discrimination with regard to his work assignments. Complainant stated that when he questioned why a female co-worker was told to perform the work differently, the Manager responded that since the co-worker was female and complainant was male, he could do twice the amount of work. In addition, the Manager again stated that complainant could do twice the amount of work as a woman when questioned a second time. The Commission found that the Manager's statements were direct evidence of discrimination. Complainant's account was corroborated by two co-workers, and the Manager did not deny making the statements. Further, the Manager then repeatedly ordered complainant to meet with him regarding complainant's EEO claim. The Commission found that this action constituted unlawful retaliation, in that it was reasonably likely to deter protected activity, and caused complainant to feel intimidated to drop his EEO complaint. The agency was ordered to provide training to the Manager, and consider taking disciplinary action against him. Robert T. Boff v. USPS, EEOC Appeal No. 0120072104 (August 6, 2007).

--Retaliation--

(In the decisions summarized below, the Commission found that complainants had been retaliated against for their prior EEO activities. –Ed.)

Retaliation Found in Removal. The Commission found that complainant was subjected to retaliation when she was removed from the position of Branch Chief. According to the record, complainant was to complete a one-year probationary period. During that time, complainant informed her supervisor that another Branch Chief was allegedly discriminating against a female employee. On appeal, the Commission noted that, prior to complainant's raising the issue of discrimination, the agency was willing to work with complainant to help her in her new position. In addition, while the agency stated that complainant was removed because of her management style, complainant received a successful performance rating, a step increase, and an award for her work as a Branch Chief. The Commission found the record lacking any evidence or documentation of complainant's alleged performance problems. Thus, the Commission concluded that the agency's articulated reason for removing complainant was a pretext for retaliation. The agency was ordered to reinstate complainant to the Branch Chief position, with back pay and benefits, and expunge her records of any references to the unsuccessful completion of her probationary period. Naomi Detenbeck v. Environmental Protection Agency, EEOC Appeal No. 0720070055 (October 4, 2007), request for reconsideration denied, EEOC Request No. 0520080134 (December 18, 2007).

Retaliation Found--Sanctions Upheld. The Commission found that complainant was subjected to retaliation for his prior EEO activity. The Commission initially affirmed the Administrative Judge's decision to impose sanctions against the agency for its failure to comply with an order to submit a pre-hearing report, including a proposed list of witnesses, by denying the agency the opportunity to present witnesses at the hearing. The Commission then found that complainant, who had a well-known history of participating in the EEO process, was subjected to retaliation when the agency terminated his detail assignment, did not allow him to return to work after using Family Medical Leave Act (FMLA) leave, instructed complainant to turn in a change of schedule request in order to attend an EEO hearing, denied his "no lunch" scheduling request, and failed to submit FMLA paperwork. The Commission noted that, despite prior findings of discrimination, complainant's supervisors appear to have continued in their efforts to punish complainant for engaging in protected EEO activity. The Commission ordered the agency to provide complainant with training assignments that would aid in the performance of a higher level detail, and a higher level detail assignment. Michael Hillion v. USPS, EEOC Appeal No. 0720060068 (August 7, 2007).

Grievances

(See article, this issue. –Ed.)

Petitions For Enforcement

Petition for Enforcement Granted. In a prior appellate decision, the Commission found that petitioner was subjected to discrimination when he was not selected for a Program Management Officer, GS-14, position, and ordered the agency, among other things, to retroactively promote petitioner to the position, with back pay. Here, petitioner argued that he is entitled to a GS-15 promotion, because he would have received such a promotion if he had not been subjected to discrimination and had longer service in his EEOC-ordered GS-14 position. Rejecting this argument, the Commission noted that petitioner was not entitled to a GS-15 level position, as it was not part of his career ladder progression. Nevertheless, the Commission indicated that petitioner may be entitled to compensation for an increase in his income tax due to receiving back pay in a lump sum amount. The Commission stated that petitioner must show more than the total tax liability arising from the lump sum award. He must show the differential between this tax burden and what he would have owed if he had received the back pay over time as part of his salary. Thus, the Commission instructed the agency to consider petitioner's claim. Otis Johnson, Jr. v. Environmental Protection Agency, EEOC Petition No. 0420060035 (November 5, 2007).

Remedies

EEOC Affirms AJ's Award of $50,000.00 in Compensatory Damages and Over $25,000.00 in Attorney's Fees. The Commission affirmed the Administrative Judge's award of $50,000.00 in compensatory damages following a finding of discriminatory non-selection. The Commission noted that complainant testified that she suffered stress as a result of the agency's action, lost weight, and became withdrawn. Complainant's sister and husband also testified as to their observations of complainant. The Commission also affirmed the Administrative Judge's award of $25,757.41 in attorney's fees. The Commission found that the claimed hourly rates for the primary and secondary counsel were reasonable, given the attorneys' experience and the prevailing rate. Donzetta Lindsay v. Department of Veterans Affairs, EEOC Appeal No. 0720070016 (July 26, 2007), request for reconsideration denied, EEOC Request No. 0520070874 (September 26, 2007).

Sanctions

(See, "Findings of Discrimination—Retaliation," this issue –Ed.)

Settlement Agreements

Insufficient Agency Investigation Requires Remand of Noncompliance Claim. Complainant, who is hearing impaired, alleged, in part, that the agency breached a settlement agreement when a supervisor interrupted a work-related conversation between complainant and his co-worker by touching him on the shoulder. The settlement agreement provided protocols for how management would communicate with complainant, including, in part, visually getting the complainant's attention, positioning themselves in front of complainant so that their lips can be read, and refraining from touching the complainant. The agency determined that there was no breach but failed to provided the Commission with any investigation into the claim. The record was devoid of such evidence as affidavits in support of the agency's final decision (FAD). The Commission held that it could not make a determination regarding the claim, vacated the FAD, and ordered the agency to conduct a supplemental investigation. Kenneth Fisher v. United States Postal Service, EEOC No. 0120072355 (August 9, 2007).

Ambiguities in Language of Agreement Will be Held Against Drafter. On November 24, 2004, complainant and the agency entered into an agreement which provided, in part, that a pending hearing before an EEOC Administrative Judge (AJ) would be taken off the docket with a "leave to reinstate by March 1, 2005" provision. Subsequently, complainant learned that the agency's position was that she was required to request a hearing to get the case back on the docket which she did after the March 1, 2005 date. The agency filed a Motion to Dismiss and the AJ ordered the agency to issue a FAD based on the investigative file. Upon reviewing the agreement, the Commission found it vague and ambiguous. Under such circumstances, the Commission stated, EEOC has held that ambiguities in the language used in a contract will be held against the drafter, in this case the agency. The Commission noted that that the complainant was acting pro se and was under the impression that the hearing would be automatically reinstated in the event that a settlement was not reached by March 1, 2005. The Commission found that the record supported the finding that complainant never abandoned her hearing request, but rather agreed, in the interest of settlement, to delay the hearing. Furthermore, complainant's unrebutted statement indicated that the agency made no effort to engage her in settlement discussions, which was the entire basis for delaying the hearing in the first place. The Commission stated that mindful of the remedial underpinnings of Title VII, federal courts and the EEOC have been extremely reluctant to allow procedural or technical barricades to Title VII actions. In this case, the Commission found that the AJ should have resolved ambiguities in favor of the complainant instead of dismissing complainant's hearing request. Accordingly, the Commission vacated the agency's final action and ordered the agency to submit the complaint to the Hearings Unit of the EEOC district office for processing. Annamarie Howe v. Department of Energy, EEOC Appeal No. 0120063257 (July 26, 2007).

Settlement Agreement Noncompliance Claim Untimely. The settlement agreement provided that a former supervisor would be moved out of complainant's work area within 60 days of the date of the agreement. On December 30, 2006, the complainant alleged in a letter inadvertently sent to the EEOC field office, but forwarded to the agency, that the settlement agreement had been breached. Complainant argued that the agreement was entered into in February 2006 and backdated to October 2005. The Commission disagreed, finding that the settlement agreement was executed on October 16, 2005, and that complainant knew or should have known of alleged noncompliance by the end of 2005. Noting that the agreement expressly informed complainant that breach allegations must be reported to the agency within 30 days, as provided in Commission regulations, the Commission affirmed the agency's determination that complainant's breach claim was untimely raised. Denise DeRosa v. Department of the Army, EEOC Appeal No. 0120072258 (July 31, 2007).

Stating A Claim

(In the following cases, the Commission found complainant's claims to be cognizable. –Ed.)

Marcene Juergensen v. Department of Commerce, EEOC Appeal No. 0120073331 (October 5, 2007), request for reconsideration denied, EEOC Request No. 0520080128 (December 19, 2007). (An African-American complainant's allegation that the agency discriminated against her on the basis of race by knowingly placing an employee in her office who had previously displayed a noose in the workplace stated a justiciable claim. Although this claim involved a single incident, the Commission found that it stated a claim because a noose is such a highly charged and powerful symbol of racism and violence.)

Su-Ying M. Chen v. United States Postal Service, EEOC No, 0120062272 (August 9, 2007) (A complaint of harassment based on national origin (Asian of Taiwanese national origin) alleging that a co-worker repeatedly yelled at Asian workers, mimicked the appearance of their eyes, and made remarks such as: "if you can't speak English, you don't belong here"; "learn to speak better or go back to your own country"; and "can't you read English?" were sufficient to state a claim of harassment and, if true, would have been sufficiently severe and pervasive to have altered the workplace and create a hostile environment. In making its finding, the Commission considered incidents described in the counselor's report, the formal complaint, and on appeal together as a single claim of harassment.)

(In the following cases, the Commission affirmed the agency determination that the complainant failed to state a claim. –Ed.)

Andrew J. Wright v. Department of Commerce, EEOC Appeal No. 0120072987 (September 7, 2007) (A complaint based on lack of U.S. citizenship, in disqualification from position of Fishery Biologist, is not cognizable as national origin discrimination under federal employment discrimination laws.)

Charles Casarez v. United States Postal Service, EEOC Appeal No. 0120073896 (February 26, 2008) (Complainant's allegation that he was subjected to sexual harassment when a supervisor asked another supervisor if he (complainant) was his girlfriend does not rise to the level of sexual harassment.)

Timeliness

EEO Contact Timely: Agency Failed to Meet Burden of Obtaining Sufficient Information to Support a Reasoned Determination as to Timeliness. Complaints of eleven individuals were consolidated on appeal where all claimed discrimination on the basis of national origin (Filipino) and each complaint arose from a common set of facts, i.e., suspension as a result of a disagreement with their supervisor. The agency dismissed their complaints for untimely EEO Counselor contact. On appeal, complainants argued that they had no actual or constructive notice of the forty-five day limitation period for initiating EEO Counselor contact. The agency asserted that EEO posters were located in numerous locations throughout the workplace; it did not, however, provide any evidence in the record that EEO posters were on display. The Commission noted that an assertion on appeal is inadequate to satisfy the agency's burden of showing that the complainants had actual or constructive notice of the time limits. Rowena Beckmyer, et al v. Department of the Navy, EEOC Nos. 0120073167, et al. (September 26, 2007).

Complaint Timely. In finding complainant's formal complaint timely, the Commission stated that a "Track and Confirm" print-out containing only a generalized reference to a city and zip code, without further details of an address, was not sufficient to show when complainant actually received the notice of the right to file a formal complaint. Without further evidence, the agency failed to show that the complaint was untimely filed. Martha L. Gilbert v. United States Postal Service, EEOC Appeal No. 0120072839 (August 6, 2007).

Withdrawal of Informal Complaint

Complainant's Informal Complaint Withdrawal Letter Misconstrued by Agency. When the complainant chose to withdraw her informal complaint regarding a termination issue, the agency believed that she waived her right to file a formal complaint on an alleged harassment claim because, based on a consolidation of complaints, the issues were inextricably intertwined. As a result, the agency dismissed her entire complaint for failure to state a claim. The Commission, however, found that the agency misconstrued complainant's withdrawal letter; complainant wanted to continue to process her claim of sex-based harassment and withdrew only her termination issue. As a result, the Commission found that the dismissal was inappropriate and ordered the agency to process the remanded claim. Kimberly Lopez v. Department of the Navy, EEOC No. 0120064792 (August 16, 2007).

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A CASE UPDATE: THE GRIEVANCE PROCESS VS. THE EEO PROCESS
Understanding the Differences

The following article, written in Question and Answer format, is designed to help the reader understand the grievance process as it relates to the EEO process. It is not intended to be an exhaustive or definitive discussion of a complex area of law.

1. Can a federal sector employee file both a grievance and an EEO complaint alleging employment discrimination?

Generally, a federal sector employee may not file both a grievance and an EEO complaint on the same matter, if the applicable collective bargaining agreement permits the employee to raise issues of discrimination in the grievance process. The employee must elect to raise the matter of alleged discrimination under either EEOC Regulation 29 C.F.R. Part 1614 or the negotiated grievance process, but not both. This applies to individuals employed by an agency subject to 5 U.S.C. § 7121(d). The underlying principle is that an aggrieved employee who has a choice of forums in which to proceed cannot go forward in more than one forum.¹

2. How does an employee make an election to file an EEO complaint?

An employee who files a formal written complaint under 29 C.F.R. § 1614.106 has elected to proceed in the EEO forum. Once an employee files a formal EEO complaint, he or she may not then file a grievance on the same matter. Contacting an EEO Counselor or otherwise using the pre-complaint process does not constitute an election to proceed in the EEO forum.²

3. How does an employee make an election to file a grievance?

An employee who files a timely, written grievance has elected to proceed under a negotiated grievance procedure. An employee who files a written grievance with an agency whose collective bargaining agreement permits allegations of discrimination may not then file an EEO complaint on the same matter.³

4. Does the agency have to notify an employee of the need to elect a forum?

No. Once an employee files either a formal EEO complaint or written grievance, he or she has elected to proceed in that forum, irrespective of whether the agency has informed the individual of the need to elect a forum.

5. What if an individual elects to proceed in the grievance forum, but does not raise an issue of discrimination?

Once an individual has elected to proceed in the grievance forum, he or she may not file an EEO complaint raising the same matter/set of facts, irrespective of whether the grievance raised an issue of employment discrimination. If the employee has elected the grievance forum, any issues of discrimination related to the matter should be raised there.

6. If an employee files a written grievance, what will happen if the employee later files a formal EEO complaint on the same matter?

If an employee first files a grievance, thereby electing to proceed in the grievance forum, a subsequent EEO complaint on the same matter will be dismissed pursuant to 29 C.F.R. § 1614.107(a)(4). The complainant will still have the right to proceed through the negotiated grievance process, and can appeal the final grievance decision to the Commission when an issue of employment discrimination is raised in the grievance. When dismissing an EEO complaint, the agency should advise the complainant to raise any discrimination claims in the grievance process, and of the right to appeal the final grievance decision to the Commission pursuant to 29 C.F.R. § 1614.401(d).

7. Can an individual withdraw a written grievance action, and subsequently pursue the matter in the EEO forum?

No. Once an employee has filed a written grievance, he or she has elected to proceed in that forum and may not then raise the same issue in an EEO complaint. Withdrawing a timely filed grievance does not cancel its effect for purposes of an election, and a subsequent EEO complaint will be properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(4).⁴

8. What if the collective bargaining agreement does not provide for allegations of discrimination to be raised in the grievance process?

In this case, the employee can file a formal EEO complaint raising the allegation(s) of discrimination, even if he previously filed a written grievance concerning the same set of facts. The complaint will be processed pursuant to 29 C.F.R. Part 1614. The employee must contact an EEO Counselor with regard to the alleged discrimination within the 45-day time limitation specified in 29 C.F.R. § 1614.105. An employee's decision to pursue a claim through the grievance process does not toll the time limits for contacting an EEO Counselor.⁵

9. Are the procedures different for employees of the United States Postal Service, and Tennessee Valley Authority?

Yes. Employees of the USPS, TVA, and other agencies not covered by 5 U.S.C. § 7121(d) may file an EEO complaint pursuant to 29 C.F.R. Part 1614 and also a grievance pursuant to a collective bargaining agreement involving the same matter. The EEO complaint will be processed in accordance with the EEOC's Regulations. The time limits for processing the complaint and for appeal to the Commission may be held in abeyance during the processing of the grievance if the agency provides written notification to the complainant.⁶ The processing of an EEO complaint may be held in abeyance until a final decision is issued on the grievance.

10. Can an individual file an EEO complaint if he or she believes the agency has improperly processed a grievance action?

No. Such a complaint would be considered to be a collateral attack on the agency's grievance procedure, and would be dismissed for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). A claim that involves a challenge to another forum's proceeding, for example a claim that the agency cancelled a grievance action, is a collateral attack.⁷ The Commission has consistently held that, except in very narrow circumstances, an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding.⁸

11. If an individual believes the agency has violated a grievance settlement, can he or she file an EEO complaint with regard to that matter?

No. An employee may not use the EEO process to obtain compliance with a grievance settlement. Such a complaint is outside the purview of the EEO process, and will be dismissed for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1).⁹ The EEOC's jurisdiction over settlement breach claims is limited to agreements reached during "any stage of the [administrative EEO] complaint process."¹⁰

12. If a union files a written grievance on its own with regard to an employment action, can an employee elect to file an EEO complaint as it relates to him or her?

Yes. If a union files a grievance with regard to an agency's action independent of an individual employee, that employee may file an EEO complaint raising an allegation of discrimination. For example, in Battu v. Department of Veterans Affairs,¹¹ the union filed a grievance following complainant's reassignment, alleging that the action violated union agreements and related to the treatment of "all" employees. The grievance explicitly stated that it was a "union grievance," and was not filed on behalf of any employee. The Commission found no evidence that complainant was involved with the filing of the grievance, and, therefore, complainant did not elect to pursue the issue of his reassignment in the grievance forum. The Commission noted that an agency cannot deny a complainant his statutory and regulatory right to file an EEO complaint because the union exercised its right to file its own grievance pursuant to the terms of a collective bargaining agreement.

13. If an individual elects to pursue an employment discrimination issue through the grievance process, may the individual appeal the grievance decision to the EEOC?

Generally, yes. If the individual has received a final decision from the agency, arbitrator, or the Federal Labor Relations Authority concerning an issue of employment discrimination, he or she may appeal the employment discrimination issues to the EEOC pursuant to 29 C.F.R. § 1614.401(d). The individual may not appeal to EEOC if the grievance procedure is still on-going, or if 5 U.S.C. § 7121(d) does not apply to the agency involved in the grievance.

14. Where can individuals find more information about the grievance process as it relates to the EEO complaint process?

For more detailed information and additional resources, the reader is advised to consult the Commission's website at www.eeoc.gov. In addition, the reader may consult the EEOC's regulations pertaining to the negotiated grievance process, at 29 C.F.R. § 1614.301, as well as EEOC's Management Directive 110 (EEO MD-110) for 29 C.F.R. Part 1614, Chapter 4, Section III.

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Footnotes

¹ EEOC Management Directive 110 (MD-110), Chapter 4, Section III(A).

² 29 C.F.R. § 1614.301(a).

³Id; And see, John T. Howard v. Department of Veterans Affairs, EEOC Appeal No. 0120073739 (November 2, 2007).

⁴See Parvin Sieczkowski v. Social Security Administration, EEOC Appeal No. 01A45859 (August 29, 2005).

⁵See Richard J. Tropp v. Department of Veterans Affairs, EEOC Appeal No. 0120073695 (October 29, 2007).

⁶ 29 C.F.R. § 1614.301(c).

⁷Mark Habiger v. Department of Agriculture, EEOC Appeal No. 0120072756 (August 13, 2007).

⁸Id.

⁹See Pamela D. Perkins v. United States Postal Service, EEOC Appeal No. 01A50151 (April 13, 2005); Doyle E. Sorrell, Jr. v. United States Postal Service, EEOC Appeal No. 01A45910 (December 22, 2004), request for reconsideration denied, EEOC Request No. 05A50481 (March 30, 2005).

¹⁰ 29 C.F.R. § 1614.504(a).

¹¹ EEOC Appeal No. 01A44033 (September 28, 2004).