[Redacted], Alton F., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 11, 2022

Appeal No. 2020004137 (E.E.O.C. Aug. 11, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alton F.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020004137 Hearing No. 510-2018-00275X Agency No. 200I-0675-2018900017 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 15, 2020, final order concerning his equal employment opportunity (EEO) complaint alleging 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Podiatrist at the Agency’s Outpatient Clinic in Viera, Florida. On December 7, 2017, Complainant filed an EEO complaint alleging discrimination and harassment by the Agency on the bases of disability (physical) and reprisal for prior protected EEO activity.2 On November 8, 2018, Complainant filed an additional complaint alleging that the Agency discriminated against him on the basis of reprisal in violation of the Rehabilitation Act. 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. 2 On appeal, Complainant asserts that the Agency improperly characterized his claim of reprisal as a claim under Title VII instead of the Rehabilitation Act. 2020004137 2 After its investigation into the complaints, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. Complainant filed multiple Motions to Amend and, on July 18, 2019, the AJ identified the issues as follows: 1. Did the Agency discriminate against Complainant on the basis of his disability or as an act of reprisal in violation of the Rehabilitation Act by subjecting him to a hostile work environment? The claims alleged by Complainant in support of the harassment claim were that: Since late May/early June 2017, Complainant was accused of “fudging numbers; subjected to second review of charts and Medical Committee Review, supervised surgical procedures, threatened with termination of surgical privileges, and denied representation; (2) On August 29, 2017, his reasonable accommodation request for: (a) exemption from after hours, (b) exemption from weekend calls, (c) a work week not to exceed 40 hours, and (d) to work at the Outpatient Clinic in Viera, Florida was denied; (3) On September 18, 2017, his surgical privilege to perform bunion surgeries was suspended; and (4) Since approximately October 23, 2017, he was banned from performing any type of surgery; 2. Did the Agency discriminate against Complainant as an act of reprisal in violation of the Rehabilitation Act when on August 13, 2018, he was placed on a performance improvement plan? 3. Did the Agency discriminate against Complainant as an act of reprisal in violation of the Rehabilitation Act when on (a) January 16, 2019, the Agency submitted a letter to the Florida Department of Health, Division of Professional Licensure, alleging that there was substantial evidence that Complainant “significantly failed to meet generally accepted standards of clinical practice as to raise reasonable concern for the safety of patients” during his surgical performance as a Podiatrist; and (b) when he was issued a proposed removal on June 18, 2019? Complainant subsequently requested an amendment of his complaint to include the claim that on July 5, 2019, he was issued a Letter of Discharge. The AJ amended the complaint to include the Letter of Discharge claim. The Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The AJ found that the Agency’s motion outlined the proper legal standard for summary judgment and substantially identified the accepted issues although it failed to include the July 5, 2019, Letter of Discharge claim. 2020004137 3 The AJ noted that the assumption was made that the Letter of Discharge was not tantamount to termination of employment, and if it was, Complainant had rights under the Merit Systems Protection Board (MSPB) regulations. Therefore, even though the AJ granted the motion to amend, the AJ determined that Complainant’s termination was not part of the EEOC hearings process. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. Complainant argued, among other things, that the AJ erred in dismissing Complainant’s discharge claim based on uncertainty whether Complainant had MSPB appeal rights. 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. 29 C.F.R. §1614.302 (a)(1). Generally, pursuant to 29 C.F.R. § 1614.302(d), the procedure for processing a mixed case complaint includes an EEO investigation, a final agency decision without a hearing, and the right to appeal the final agency decision to the MSPB (not the EEOC). An aggrieved person may elect to initially file a mixed case complaint with an agency or may file a mixed case appeal directly with the MSPB, but not both. Upon review of the record, we find that the AJ failed to properly address all the claims of discrimination raised in the matter before them. The amended discharge claim is a claim over which the MSPB typically has jurisdiction. However, Complainant did not receive notice of his right to appeal to the MSPB. The AJ allowed Complainant to amend the complaint to include the Letter of Discharge with the assumption that if the matter equated to termination, Complainant’s appeal rights were with the MSPB. Although the AJ noted that the matter was appealable to the MSPB, the AJ failed to dismiss the claim and provide Complainant with appeal rights to the MSPB. As the AJ merely failed to address this claim other than to note it was “nothing more than affirmance of the Proposed Removal…” the AJ has provided Complainant with no rights to challenge the action. It is well settled that the Commission may properly assume initial jurisdiction of a mixed case matter when it becomes so firmly enmeshed in the EEO process that it would unduly delay justice and create unnecessary procedural complications to remand it to the MSPB. See Harrell v. Dep't of Vet. Aff., EEOC Request No. 05940652 (May 24, 1995). Under the circumstances of this case, we find that the discharge claim is so firmly enmeshed in the EEO process that a remand to the MSPB would be improper, and that it would better serve the interests of administrative economy for the AJ to address the merits of the discharge claim. Because the Agency’s final decision and the AJ’s decision do not clearly advise Complainant of his appeal rights to the MSPB for the discharge claim, we vacate the Agency’s final decision. Susan M. v. Dep’t of Vet. Aff., EEOC Appeal No. 2021000756 (May 5, 2022). 2020004137 4 Accordingly, we VACATE the Agency’s final order adopting the AJ’s decision and REMAND the matter in accordance with the ORDER below. ORDER Within 15 calendar days of the date this decision is issued, the Agency shall submit a renewed request for a hearing on Complainant’s behalf, a copy of this appellate decision, and the complaint file to the Hearings Unit of the EEOC’s Miami District Office. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall issue a decision in accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final decision in accordance with 29 C.F.R. § 1614.110. 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 Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant 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 Complainant 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 Complainant 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. 2020004137 5 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2020004137 6 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 August 11, 2022 Date