0520120275
05-31-2012
Nilza H. Oliveira, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Nilza H. Oliveira,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Request No. 0520120275
Appeal No. 0120114017
Agency No. HSCBP012592011
DENIAL
The Agency timely requested reconsideration of the decision in Nilza H. Oliveira v. Department of Homeland Security, EEOC Appeal No. 0120114017 (January 26, 2012). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
On June 30, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), national origin (African-American), and color (black) when on May 18, 2011, a supervisor stated that Complainant's hair was not a natural color and instructed her to change the color of her hair to comply with the National Collective Bargaining Agreement (CBA). Complainant had red hair, and disputed the supervisor's statement that her hair was not a natural color.
The Agency dismissed the formal complaint on the grounds that Complainant elected to pursue her allegations through the grievance process. The record contained a copy of a grievance form that is identified as having been filed on May 19, 2011. In Block 2 of the form, the "Filer" of the grievance is identified as "NTEU Chapter 105" and the signature blocks for both the grieving employee and union representative are left unsigned. The Commission found that the Agency had not sufficiently proven Complainant elected to pursue her claim through the negotiated grievance process. While the Agency established that the pertinent CBA covered claims of employment discrimination, the Agency failed to show that Complainant filed a grievance or that Complainant participated in a global grievance filed by the union. In fact, the Agency failed to provide any evidence that Complainant or any union representative successfully filed a grievance. The Commission acknowledged that the record contained a grievance form dated May 19, 2011, the form did not however name Complainant as the grievant, nor was it signed by any person. The Commission found that the Agency had not proven its reason for dismissal and reversed and remanded the Agency's decision.
REQUEST FOR RECONSIDERATION
In the Agency's request for reconsideration, the Agency argues that the Commission erred when it found that Complainant's formal complaint was not barred by her election to pursue her discrimination claim through the negotiated grievance process. The Agency indicates that the Commission's decision is based on two clearly erroneous findings of fact. The Agency contends that contrary to the Commission's finding, the record demonstrates that the Union successfully filed a grievance despite the absence of a signature on the grievance form. The Agency explains that on May 19, 2011, Complainant emailed the Union President and the Agency's Labor and Employee Relations Specialist, requesting a meeting with management to discuss her hair color counseling. An email was also sent to Complainant's first-line supervisor to discuss the hair color counseling that Complainant received. The Agency argues that the emails requesting a meeting with management undeniably constituted a Step 1 grievance.
Further, the Agency maintains that the Union President on May 20, 2011, emailed a completed CBP Form 280 grievance to the Labor and Employee Relations Specialist. Although no meeting had yet occurred, it appears that the Union President was attempting to formally submit a Step 2 grievance on Complainant's hair color issue. On May 27, 2011, after the Agency determined that Complainant's hair color complied with the CBA and agreed to withdraw its action against Complainant, the Union President informed the Labor and Employee Relations Specialist that the grievance had been resolved. While the Agency acknowledges that the form was not signed as required by Article 27, Section 8A of the CBA, the Agency asserts that the effectiveness of the Step 2 grievance form was not determinative of whether the Union successfully filed a grievance. The Agency maintains that all parties treated the grievance as having been successfully resolved as there was a retraction of the hair color counseling provided directly to Complainant. The Agency contends that it would not have provided the relief requested, nor would the Union have agreed to the resolution of a grievance that did not exist.
Finally, the Agency maintains that there is no dispute that Complainant participated in the grievance even though she was not specifically named as the Grievant. The Agency maintains that the record demonstrates that Complainant was actively involved in the initiation of the Step 1 and 2 grievances, the grievance contained facts that only Complainant could have provided, the grievance specifically sought a written apology to Complainant and did not seek relief for, or applicable to, any other Union members, such as a clarification of the Agency's policy, and finally, the grievance was resolved solely because the Agency determined that Complainant's individual hair color was appropriate, not because the Agency agreed to treat other Union members in a similar fashion going forward. The Agency argues that to decide other than Complainant filed a grievance that was resolved is to give her "two bites at the apple."
ANALYSIS AND FINDINGS
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to deny the request. Specifically, we find that the Agency failed to show that the appellate decision involved a clearly erroneous interpretation of material fact or law or that the appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
The Commission has long held that a request for reconsideration is not a second chance at an appeal. In the case at hand, the Agency argues that Complainant initiated the grievance, was the subject of the grievance, and benefited from the grievance; nevertheless, in the appellate decision, the Agency provided no evidence to support these contentions. Instead, a form which contained no signatures was produced. The previous decision therefore found that the Agency had not sufficiently established that Complainant elected to pursue her claim through the negotiated grievance process as her name was not on the grievance form nor was there any other persuasive evidence to support the Agency's position. We agree. We find no evidence that would indicate that the previous decision clearly erred.
In Ericson v. Department of the Army, EEOC Request No. 05920623 (January 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 (January 31, 1992). The Agency did not meet its burden with respect to the appellate decision. Accordingly, the decision in EEOC Appeal No. 0120114017 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below.
ORDER (E0610)
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 becomes final. 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 becomes final, 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.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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 slated 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.
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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__5/31/12________________
Date
2
0520120275
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120275