0120170422
04-06-2017
Eugenia C,1 Complainant, v. Steven T. Mnuchin, Secretary, Department of the Treasury, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Eugenia C,1
Complainant,
v.
Steven T. Mnuchin,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120170422
Agency No. BFS-16-0490-F
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (FAD) dated November 4, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Senior Contract Specialist at the Agency's Office of Shared Services facility in Washington DC. On June 23, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American) and color (Black) when:
1. On February 5, 2015, Complainant received a lowered evaluation.
The Agency dismissed the claim on the grounds that Complainant had previously raised the same complaint in the negotiated grievance procedure.
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, 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. A review of the record shows that at time of the alleged action, Complainant was employed by an agency subject to 5 U.S.C. � 7121(d) and that Complainant was also covered by a Collective Bargaining Agreement (CBA) that permitted allegations of discrimination to be raised in the negotiated grievance procedure. The record further shows that on April 13, 2016, Complainant filed a Step 3 Grievance concerning the fact that she received an "Exceeds Expectations" evaluation instead of an "Outstanding" in her 2015 performance appraisal. Complainant may not, therefore, subsequently file an EEO Complaint on the same matter.
On appeal, Complainant argues that her grievance and her EEO complaint do not address the same matter. Specifically, Complainant maintains that her grievance addressed management's violation of the CBA in not discussing with her beforehand the fact that management believed her performance was dropping, while the instant EEO complaint:
[I]s based on the discriminatory treatment that I received when requesting that upper management consider my input and reasons that I detailed, supporting the performance appraisal that I deserved. Management refused to consider utilizing any part of my documented narrative, supporting an "Outstanding" performance rating into my performance evaluation. This action had an adverse impact on my performance award, and reputation. It leaves the false impression that my skills and performance deteriorated and declined during my final year of government service, making it difficult for me to seek post retirement employment. I was devalued, disrespected and discriminated against.
Complainant's Appeal Brief, p. 3.
Furthermore, in her Formal Complaint, Complainant states that after receiving her evaluation she sent the Deputy Assistant Commissioner (DAC):
[A] lengthy written narrative of all five performance elements, describing the reasoning for why I deserved an "outstanding" performance rating. . . . [H]e did not address the narrative that I wrote. He merely suggested that receiving an outstanding rating under two of the five elements did not reflect a substantial decrease in my performance. He did not explain why he refused to consider utilizing any parts of my write-up into [sic] my performance evaluation. This lack of professionalism left me feeling devalued, discriminated against, and disrespected.
Formal Complaint, p. 4.
Following a review of the record we find that, to the extent Complainant is alleging that she was discriminated against when DAC failed to acknowledge her lengthy written narrative, Complainant fails to state a claim. The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in part, that an Agency shall dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from any employee or applicant for employment who believes he or she has been discriminated against by that Agency because of race, color, religion, sex, national origin, age, or disabling condition. 29 C.F.R. �� 1614.103, 106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). We find that DAC's alleged failure to acknowledge or address Complainant's written narrative did not create a harm or loss with respect to a term, condition or privilege of employment. Nor is it apparent what remedy would be available to Complainant should she prevail on such a claim. In the "Remedies" section of the Formal Complaint, Complainant requests that her performance appraisal be changed to "Outstanding," which supports the Agency's argument that this complaint is about her evaluation, not DAC's failure to address her written narrative.
While Complainant maintains that DAC's actions resulted in emotional harm, we note that the Commission has long held that where an allegation fails to render an individual aggrieved, the complaint is not converted into a cognizable claim merely because complainant alleges physical and/or emotional injury. See Larotonda v. United States Postal Service, EEOC Appeal No. 01933846 (March 11, 1994).
While Complainant on appeal maintains that her complaint is not specifically about her evaluation but is instead about DAC's actions after she received her evaluation, we note that in her Formal Complaint Complainant also states "I was discriminated against during my 2015 performance appraisal" and further argues that she and other employees "were targeted to have our performance ratings lowered as a means of demotion and as an action to discourage the continuation of employment with the agency." Such arguments again support the Agency's contention that this complaint is about Complainant's evaluation, as opposed to DAC's failure to act after her evaluation. Furthermore, while Complainant argues that her grievance was about management's violation of the CBA in not discussing with her beforehand the fact that management believed her performance was dropping, a copy of the Step 3 grievance again states that as a remedy, Complainant sought to have her evaluation changed from "Exceeds Expectations" to "Outstanding" thus indicating that her evaluation was inextricably intertwined with her grievance. Perkins v. Dept. of Treasury, EEOC Appeal No. 01A20964 (May 6, 2003) (claims were determined inextricably intertwined with the issue of complainant's removal, which were raised in complainant's grievance. As the complainant elected to pursue the non-EEO process, the agency's decision dismissing complainant's complaint was affirmed).
Finally, we note that Complainant argues on appeal that she did not raise the issue of discrimination during her grievance. We note, however, that the relevant issue is whether the CBA permits claims of discrimination, as it does here, not whether Complainant actually raised discrimination in her grievance. See 29 C.F.R. � 1614.301(a).
CONCLUSION
The FAD is AFFIRMED.
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
April 6, 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.
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