EEOC Appeal 2020000188

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Roman B.,1
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Request No. 2020000188
Appeal No. 0120181788
Hearing No. 450-2018-00043X
Agency No. 2017-27149-FAA-05
DECISION ON REQUEST FOR RECONSIDERATION
On October 8, 2019, the Agency timely requested that the Equal Employment Opportunity
Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120181788
(September 13, 2019). 29 C.F.R. § 1614.405(c). EEOC regulations provide that the Commission
may, in its discretion, grant a request to reconsider any previous Commission decision issued
pursuant to 29 C.F.R. § 1614.405(a), 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(c). For the reasons that follow, the Agency’s request is
DENIED. However, the Commission exercises its discretion to reopen this matter on its own
motion.
BACKGROUND
Complainant is employed by the Agency as an Aerospace Engineer, FV-0861-I, at the Southwest
Region, Aircraft Certification Service, Delegation Systems Certification Office in Fort Worth,
Texas.
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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On December 3, 2016, Complainant filed an equal employment opportunity (EEO) complaint
alleging that the Agency discriminated against him based on his race/color (African-
American/dark brown), sex (male), and reprisal for prior protected EEO activity under Title VII
of the Civil Rights Act of 1964 when, on November 3, 2016, the Agency proposed suspending
him for five days.
Shortly thereafter, on January 13, 2017, the Agency sustained the proposal and Complainant was
suspended for five days commencing on January 28, 2017. Where a complaint is filed on a
proposed action and the agency subsequently proceeds with the action, the proposal is considered
to have merged with the action. Charles v. Treasury, EEOC Request No. 05910190 (Feb. 25,
1991), Lenard T. v. Homeland Security (TSA), EEOC Appeal No. 0120173045 (Feb. 21, 2019).
Accordingly, we construe Complainant’s complaint as regarding his actual suspension.
On January 26, 2017, the union, on behalf of Complainant, filed a grievance using the negotiated
grievance procedure to challenge the suspension as violating the collective bargaining agreement
(CBA). The Agency denied the grievance on January 31, 2017, and on February 6, 2017, the union
invoked arbitration. Following an arbitration hearing on August 15, 2017, the arbitrator issued an
“Opinion and Award” on October 30, 2017, finding the five-day suspension violated the CBA, and
directed the Agency to rescind the suspension and make Complainant whole for all lost wages and
benefits. Thereafter, the Agency issued a Notification of Personnel Action rescinding the
suspension that notated Complainant was entitled to Back Pay under 5 U.S.C. § 5596.
Meanwhile, the Agency conducted an investigation of Complainant’s EEO complaint, which was
completed in September 2017. In October 2017, Complainant exercised his right to request a
hearing before an EEOC Administrative Judge (AJ). On March 7, 2018, the AJ issued an “Order
Entering Dismissal due to Settlement”. The AJ attached the arbitrator’s Opinion and Award. The
Agency then issued a final order fully implementing the AJ’s dismissal, but explaining the
complaint was being dismissed pursuant to the Grievance/Arbitration process, not by settlement
agreement.
Complainant appealed. In EEOC Appeal No. 0120181788, we recounted that 29 C.F.R.
§ 1614.107(a)(4) requires an EEO complaint be dismissed when the complainant has raised the
matter in a negotiated grievance procedure that permits claims of discrimination. But we found
that while the record contained a copy of the arbitrator’s Opinion and Award, the record contained
no evidence that the grievance procedure permitted claims of discrimination to be raised.
Accordingly, the previous decision reversed the Agency’s final order, and directed the Agency, on
Complainant’s behalf, to request a hearing before the EEOC Hearings Unit of the Dallas District
Office.
In its request for reconsideration, the Agency argues that the CBA permits claims of EEO
discrimination to be raised in the negotiated grievance procedure, and for the first time provides
relevant portions of the CBA to support this assertion. In opposition, Complainant argues that the
Agency’s request to reconsider should be denied.

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ANALYSIS AND FINDINGS
EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider
any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), 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. 29 C.F.R. § 1614.405(c).
EEOC Regulations 29 C.F.R. §§ 1614.107(a)(4) and 1614.301(a) require that when a person is
employed by an agency subject to 5 U.S.C. § 7121(d) and is covered by a CBA 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 29 C.F.R. Part 1614 or the negotiated grievance procedure, but not both. An election
is made by the filing of a formal EEO complaint or written grievance, whichever is filed first.2
On request for reconsideration, the Agency now submits relevant portions of the CBA
documenting that claims of EEO discrimination can be made in the negotiated grievance process.
But since the record before the Commission prior to this contained no evidence that the CBA
permitted claims of discrimination to be raised in the negotiated grievance procedure, the previous
decision was not erroneous. Accordingly, the Agency’s request does not meet the criteria for
reconsideration, and is denied.
However, we exercise our discretion to reconsider the previous decision on our own motion.
Complainant’s suspension has already been adjudicated in grievance process. In another case
where a claim in an EEO complaint was previously adjudicated by an arbitrator after a hearing,
the Commission held that this constituted an election of remedies. See Jenna P. v. Dep’t. of State,
EEOC Appeal No. 0120152941 (Jan. 28, 2016). Upholding the unequivocal legislative interest to
provide only one forum in which to challenge the propriety of an agency action alleged to have
been based, in whole or in part, on discriminatory factors, takes precedence over a complainant's
equitable entitlement to have an adjudication of that issue in one forum or the other. Id. Therefore,
the Commission finds that the instant complaint was properly dismissed because Complainant
elected to pursue his suspension in the grievance process.3
2 The Agency does not address that Complainant filed his EEO complaint on December 3, 2016,
prior to his grievance being filed on January 26, 2017. It appears the Agency initially treated the
claims in the two forums as separate and distinct matters: proposed suspension (EEO complaint)
and suspension (grievance).
3 In its request for reconsideration, the Agency argues that Complainant’s EEO complaint is moot.
Because of our dismissal on other grounds, we need not address this argument.

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CONCLUSION
The Agency’s request for reconsideration is DENIED. The Commission, on its own motion,
reconsiders the previous decision. The decision in EEOC Appeal No. 0120181788 is VACATED,
and Complainant’s EEO complaint is DISMISSED.
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 (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.

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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
June 16, 2020
Date