Appendix E EEO-MD-110 (SAMPLE) NOTICE OF POSSIBLE APPLICABILITY OF 5 U.S.C. § 7121(d) TO ALLEGED DISCRIMINATORY ACTION (29 C.F.R. Part 1614)

Management Directive 110

Section 1614.105 of the regulations of the U.S. Equal Employment Opportunity Commission requires that upon an aggrieved person's initial contact with the Equal Employment Opportunity (EEO) Counselor, or as soon thereafter as possible, the EEO Counselor shall inform each aggrieved person of the possible applicability of 5 U.S.C. § 7121(d) to the alleged discriminatory action which caused the aggrieved person to seek EEO pre-complaint counseling. Further, the EEO Counselor must communicate to the aggrieved person the substance of 29 C.F.R. § 1614.301 concerning the election of remedies.

Section 1614.301 (Relationship to Negotiated Grievance Procedure) provides as follows:

1. (a) 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 a grievance on a claim of alleged employment discrimination must elect to raise the claim under either Part 1614 or the negotiated grievance procedure, but not both. An election to proceed under this part is indicated only by the filing of a written complaint; use of the pre-complaint process as described in 29 C.F.R. § 1614.105 does not constitute an election for purposes of this section. An aggrieved employee who files a complaint under this part may not thereafter file a grievance on the same claim. An election to proceed under a negotiated grievance procedure is indicated by the filing of a timely written grievance. 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 claim under Part 1614 regardless of whether the agency has informed the individual of the need to elect or of whether the grievance has raised an issue of discrimination. Any such complaint filed after a grievance has been filed on the same claim shall be dismissed without prejudice to the complainant's right to proceed through the negotiated grievance procedure, including the right to appeal to the Commission from a final decision as provided in subpart D of this part. The notice of final action dismissing such a complaint shall advise the complainant of the obligation to raise discrimination in the grievance process and of the right to appeal the final grievance decision to the Commission.
2. (b) When a person is not covered by a collective bargaining agreement that permits claims of discrimination to be raised in a negotiated grievance procedure, claims of discrimination shall be processed as complaints under this part.
3. (c) When a person is employed by an agency not subject to 5 U.S.C. § 7121(d) and is covered by a negotiated grievance procedure, claims of discrimination shall be processed as complaints under this part, except that the time limits for processing the complaint contained in 29 C.F.R. § 1614.106 and for appeal to the Commission contained in § 1614.402 may be held in abeyance during processing of a grievance covering the same claim as the complaint if the agency notifies the complainant in writing that the complaint will be held in abeyance pursuant to this section.

Accordingly, if you are alleging discrimination on the grounds of race, color, religion, sex, national origin, age, disability, genetic information and/or reprisal and if you wish to pursue the claim, you must make an election to pursue it either as a complaint with your agency under 29 C.F.R. Part 1614 or in a negotiated grievance procedure, if the following conditions apply:

1. You are an employee of a federal agency subject to the provisions of 5 U.S.C. § 7121(d), and
2. You are covered by a collective bargaining agreement which permits claims of discrimination to be raised in a negotiated grievance procedure.

If those two conditions apply to you, then you must elect one or the other procedure but not both. An election is made as follows:

1. By filing a grievance in writing (whether or not the grievance has raised a claim of discrimination), or
2. By filing a written formal EEO complaint with your agency under Part 1614. Use of the pre-complaint process (counseling) under 29 C.F.R. § 1614.105 does not constitute an election.

If you have further questions concerning the possible applicability of 5 U.S.C. § 7121(d) to you, you should immediately contact a representative of the employee organization which has a negotiated agreement with your agency or ask the EEO Counselor for further information and assistance.