[Redacted], Adam C., 1 Petitioner,v.John E. Whitley, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Mar 18, 2021

Petition No. 2021001550 (E.E.O.C. Mar. 18, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Adam C.,1 Petitioner, v. John E. Whitley, Acting Secretary, Department of the Army, Agency. Petition No. 2021001550 MSPB No. SF-0752-20-0379-I-1 DECISION On November 25, 2020, Petitioner filed a petition with the Equal Employment Opportunity Commission (EEOC or Commission) requesting review of a Final Order issued by the Merit Systems Protection Board (MSPB) regarding MSPB No. SF-0752-20-0379-I-1. For the following reasons, we DENY consideration of the petition, and REMAND this matter to the Agency for further processing. BACKGROUND At the time of events giving rise to this complaint, Petitioner worked as a Civil Engineer, GS- 0810-13, at the Engineering Division (Design Branch, Soils Section) of the U.S. Army Engineer District in Seattle, Washington. On August 9, 2018, Petitioner retired from the Agency. Petitioner then filed a formal EEO complaint on November 9, 2018, alleging that the Agency forced him to retire because of his disability and age. The Agency completed its investigation on July 15, 2019 and notified Petitioner that he could request a hearing before an EEOC Administrative Judge (EEOC AJ) or a final agency decision. Petitioner requested a hearing. After being informed that the Commission would be unable to adjudicate his constructive discharge claim until the MSPB first determined whether it had jurisdiction, Petitioner filed an appeal with the MSPB. The assigned MSPB Administrative Judge (MSPB AJ) held a videoconference hearing into the matter on August 4, 2020. 1 This case has been randomly assigned a pseudonym which will replace Petitioner’s name when the decision is published to non-parties and the Commission’s website. 2021001550 2 On September 28, 2020, the MSPB AJ issued an initial decision dismissing the appeal for lack of jurisdiction as Petitioner had failed to show that his retirement was involuntary.2 For this reason, the MSPB AJ granted the Agency’s motion to dismiss for lack of jurisdiction. The decision became the final decision of the MSPB on November 2, 2020. This timely petition followed. ANALYSIS AND FINDINGS EEOC regulations provide that the Commission has jurisdiction over mixed-case appeals and complaints on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. § 1614.303 et seq. However, when the MSPB, as it did here, denies jurisdiction, the Commission has held that there is little point in continuing to view the matter as a “mixed case” as defined by 29 C.F.R. § 1614.302(a), because the MSPB did not address any matters within the Commission’s jurisdiction.3 Therefore, the Commission finds that it has no jurisdiction to review Petitioner’s petition. This matter will be considered a “non-mixed” case and processed accordingly. See generally Schmitt v. Dep’t of Transp., EEOC Appeal No. 01902126 (July 9, 1990); Phillips v. Dep’t of the Army, EEOC Request No. 05900883 (Oct. 12, 1990); 29 C.F.R. § 1614.302(c)(2)(i) and (ii). In accordance with these principles, Petitioner’s request for review is DENIED and Petition No. 2021001550 is hereby administratively closed. MSPB No. SF-0752-20-0379-I-1 is referred to the Agency for further processing as outlined below. ORDER Petitioner is advised by operation of 29 C.F.R. § 1614.302(b) that the Agency, if it has not already done so, is required to process his allegation of discrimination. Because Petitioner filed a mixed-case complaint with the Agency, the Agency, pursuant to 29 C.F.R. § 1614.108(f), shall, within 30 calendar days of its receipt of this decision, notify Petitioner of the right to elect between a hearing before an EEOC Administrative Judge or an immediate final decision on his discrimination claim pursuant to 29 C.F.R. § 1614.110.4 2 We note that the MSPB AJ found that Petitioner failed to meet his burden of proving by the preponderant evidence that a reasonable accommodation existed or that the Agency unjustifiably failed to offer him an accommodation. The MSPB AJ also concluded that Petitioner failed to show that he had been “subjected to a hostile work environment that led to intolerable working conditions forcing him to retire.” 3 We recognize that MSPB AJ addressed aspects of Petitioner’s discrimination claims; however, we note that the MSPB AJ ultimately dismissed the appeal for lack of jurisdiction. 4 We note that Petitioner’s EEO complaint included non-mixed claims which are currently pending before an EEOC Administrative Judge (AJ) under EEOC Hearing No. 550-2019- 00102X. Therefore, if Petitioner elects to proceed to an EEOC administrative hearing on her constructive discharge claim, the Agency should ask the AJ assigned to EEOC Hearing No. 550- 2019-00102X to consolidate this matter with the non-mixed claims. 2021001550 3 IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Petitioner and his/her representative. If the Agency does not comply with the Commission’s order, the Petitioner may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Petitioner 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 Petitioner 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 stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Petitioner 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. PETITIONER’S RIGHT TO FILE A CIVIL ACTION (W0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of 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. 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. 2021001550 4 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 Petitioner’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 March 18, 2021 Date