April T.,1 Complainant,v.Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Apr 10, 2019

0120171551 (E.E.O.C. Apr. 10, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

April T.,1
Complainant,

v.

Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.

Appeal No. 0120171551

Agency No. 2016-26811-FAA-06

DISMISSAL OF APPEAL

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) concerning 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., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisory Air
Traffic Control Specialist assigned to the Oakland Air Traffic Control Tower (ATCT) in Oakland,
California. On May 16, 2016, Complainant filed the instant formal complaint alleging that the
Agency subjected her to discrimination on the bases of race (African-American), sex (female),
color (dark), age, and in reprisal for prior protected EEO activity when:

1. She was treated less favorably in the Air Traffic Organization (ATO) Technical
Training Program than other Air Traffic Control Specialists (ATCPs) and
Supervisory Air Traffic Control Specialists (SATCS);

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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2. She was treated less favorably in being able to provide and be assigned watch
supervision duties in the operation;

3. She was forced to make a decision to voluntarily take a demotion or be
terminated from federal service without being given an opportunity to
demonstrate performance in accordance with the Agency’s Human Resource
policy; and

4. She was subjected to a hostile work environment by her first level supervisor
when she was, among other things, issued with a final determination to
terminate her training and to remove her from the Oakland ATCT.

Following the investigation, the Agency notified Complainant that it had decided to process
Complainant’s complaint as a mixed-case complaint. As a result, the Agency bifurcated
Complainant’s complaint and processed claim 3 (the demotion claim) as matter appealable to the
Merit Systems Protection Board (MSPB). Meanwhile, Complainant requested a hearing before an
EEOC Administrative Judge (AJ) with regard to claims 1, 2, and 4. Complainant’s request was
forwarded to the Hearings Unit of the Commission’s San Francisco District Office. While
Complainant’s Hearing Request was pending before the Commission, the Agency issued a Final
Agency Decision (FAD) on the demotion claim only.2 The FAD found no discrimination with
respect to the demotion and provided Complainant with appeal rights to the MSPB.

CONTENTIONS ON APPEAL

On appeal, Complainant states that the Agency improperly issued a FAD on claim 3, as she elected
a hearing before an EEOC AJ. Complainant specifically argues that the Agency improperly
bifurcated her complaint by processing claim 3 separately as a matter appealable to the MSPB.
She contends that she elected to pursue her complaint under the EEO process and not through the
MSPB.

ANALYSIS AND FINDINGS

A mixed case complaint is a complaint of employment discrimination filed with a federal agency,
related to or stemming from an action that can be appealed to the MSPB. See 29 C.F.R.
§ 1614.302(a)(1). When a complaint contains both appealable and non-appealable matters, the
non-appealable issues should be processed separately from issues appealable to the MSPB. See
Lethridge v. U.S. Postal Serv., EEOC Appeal No. 07A40076 (Nov. 29, 2004), req. for recon.
denied, EEOC Request No. 05A50399 (Feb. 9, 2005) (citing, Caldwell v. Office of Pers. Mgmt.,
EEOC Request No. 05910649 (Sep. 6, 1991)). Further, “because the MSPB does not have
jurisdiction to hear non-appealable matters, complaints not containing those matters should be
processed by the agency under the 1614 process and not mixed with matters that are appealable to

2 Complainant’s hearing request is currently pending before the Commission under Hearing No.
550-2017-00429X.
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the MSPB through amendment, consolidation or held in abeyance.” Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 4 § II.B
(Aug. 5, 2015).
In the instant case, we find that the Commission does not have jurisdiction to address claim 3
because the Agency correctly issued a FAD on the claim and provided Complainant with appeal
rights to the MSPB for that allegation. See 29 C.F.R. § 1614.302(d)(3) (“At the time that the agency
issues its final decision on a mixed case complaint, the agency shall advise the complainant of the
right to appeal the matter to the MSPB (not EEOC) within 30 days of receipt and of the right to
file a civil action as provided at § 1614.310(a)”).
Here, we find that the Agency properly separately processed the non-appealable issues (claims 1,
2, and 4) from the issue appealable to the MSPB (claim 3). See, e.g., Chasity C. v. Dep't of
Homeland Sec., EEOC Appeal No. 0120140557 (Nov. 4. 2016) (advising that the agency should
have bifurcated complainant’s non-mixed allegations from her mixed allegations and issued a FAD
with appeal rights to the MSPB only for the mixed allegation, providing the option for an EEOC
hearing for the non-mixed allegations.). As such, we find that the Agency properly bifurcated the
non-appealable actions from the appealable action, with appeal rights to the MSPB only for the
appealable action. See Roxana Y. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120150209
(Jan. 3, 2017) (finding that the non-appealable actions should have been bifurcated from the
appealable action, with appeal rights to the MSPB only for appealable actions.).
Therefore, we find that the Agency properly issued a FAD and provided Complainant with appeal
rights to the MSPB with regard to claim 3. Accordingly, Complainant’s appeal is hereby
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
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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. 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.

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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 10, 2019
Date