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Dual Filing over Discrimination Matters

As detailed below you have the right to file discrimination claims through the grievance or EEO process. You can’t do both. Many times individuals have tried to raise a discrimination claim through both the grievance procedure and the EEO process. Such an effort often times results in certain evidence being excluded from one forum because it has been raised in the other forum. In the extreme this can lead to an issue being rejected by the EEO or an arbitrator because it was raised elsewhere previously.

The Civil Service Reform Act establishes a complete system for federal employees to resolve employment-related grievances and complaints. 5 USC 7121 (a) and (b) require that collective bargaining agreements between federal agencies and Unions include provisions for resolutions of grievances. Although there is no requirement that the grievance procedure provide for processing allegations of discrimination, the Statute is worded in such a way that allegations of discrimination are included within the scope of the negotiated grievance procedure unless they are specifically excluded by the collective bargaining agreement. That is, if the aggrieved employee has negotiated a collective bargaining agreement that permits the acceptance of grievances alleging discrimination, the employee may file either a grievance or an EEO complaint, but not both. 5 USC 7121(d).

The law is well settled that if an employee first initiates the EEO process, and then the negotiated grievance procedure (or vice versa) regarding an identical matter, there is a procedural bar for hearing the case related to the underlying substance of the original matter filed in the other forum. 5 USC 7121 (d). The law does give clear guidance, however, about what constitutes a formal election. No election of forum takes place unless the grievance or EEO claim is properly initiated. For instance, an employee that untimely files a grievance before timely starting the EEO process will not be denied relief based on the bar against using both procedures. A grievance must be timely filed in order for it to constitute an election of remedy. The subsequent withdrawal of a grievance does not serve to rescind the original election of forum, however. In other words, an employee cannot withdraw a grievance and then subsequently initiate an EEO complaint over the same matter. The law is well settled that withdrawal of a grievance does not abrogate its effect for purposes of an election. The failure to raise an allegation of discrimination when permitted by the negotiated grievance procedure is considered, under law, an election of forum and precludes the employee from filing a complaint with the EEOC over the same matter.

Although the law is clear that a complainant cannot use a second forum to litigate issues that were, or could have been raised in the first forum, there are a few exceptions in some cases. For instance, an employee can preserve his or her grievance rights when he or she settles an EEO complaint and states that a condition of withdrawing the complaint is contingent up his or her right to pursue a grievance with the Agency over the matter at a later time. According to varied case law, both forums can also be elected when an Agency action raises two separate claims and only one of them relates to discrimination. That is, if the subject matter of the two claims are not be identical in nature, then there is no procedural bar to adjudicating the case. The Courts have held that the term ‘matter” is generally construed to encompass more than a legal claim and instead to compass the underlying action or the topics raised in the complaints. The Courts often look to whether the grievance and complaint are ‘rooted in the same factual nucleus’ in determining whether they involve the same matter. To the extent that there is any identifiable overlap between the subject matter involved in the complaints filed in two separate forums, the decision maker in the second forum is precluded from relying on those matters raised or previously asserted in the prior filing to support his or her decision regarding the issue in question.

Whether the employee elects to pursue his or her complaint through the EEO process, or desires to proceed under the provisions of the applicable collective bargaining agreement, the complainant has the right to have the decision reviewed by the EEOC under the commission’s appellate jurisdiction. Although the Commission has no general jurisdiction to review grievance decisions with respect to matters involving contract interpretation or other aspects of labor management relations, it does have authority to review grievance decisions where allegations of discrimination have been raised. A grievant may appeal the final decision of the Agency, the arbitrator, or the Federal Labor Relations Authority (FLRA) but only after the process of review is fully complete. A grievant may not appeal to the Commission, however, when the matter initially raised in the negotiated grievance procedure is still ongoing in that process, is in arbitration, is before the FLRA, is appealable to the MSPB or if 5 USD 7121(d) is inapplicable to the involved Agency.