[Redacted], Humberto P., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionNov 2, 2022Appeal No. 2022003115 (E.E.O.C. Nov. 2, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Humberto P.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2022003115 Hearing No. 570-2022-00556X Agency No. 2004-0688-2021105688 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated May 3, 2022, dismissing his complaint alleging 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant was a Registered Nurse, VN-2, at the Agency’s Washington Medical Center in Washington, D.C. On September 3, 2021, Complainant made initial contact with an EEO Counselor. On October 14, 2021, when the matter was not resolved during counseling, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of disability and in retaliation for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when he was removed from federal service, effective August 28, 2021. 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. 2022003115 2 The Agency accepted and investigated the complaint. At the end of the investigation, the Agency processed Complainant’s removal claim as a mixed-case complaint, with appeal rights to the Merit Systems Protection Board (MSPB). However, on September 24, 2021, while the complaint was pending with the Agency, Complainant appealed directly with the MSPB. On October 20, 2021, the MSPB issued a decision, dismissing Complainant’s complaint for lack of jurisdiction because Complainant was appointed to his position in the excepted service pursuant to 38 U.S.C. § 7401(1), and such positions are expressly excluded from MSPB coverage pursuant to 5 U.S.C. § 7511(a)(10). MSPB Docket No. DC-0714-21-0659-I-1 (Oct. 20, 2021). On February 24, 2022, Complainant filed a hearing request on his complaint with an EEOC Administrative Judge, which was docketed as EEOC 570-2022-00556X. On April 14, 2022, an EEOC Administrative Judge (AJ) issued an Order acknowledging the hearing request. On May 3, 2022, the Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1), finding the complaint was currently pending before an EEOC AJ. The instant appeal followed.2 ANALYSIS AND FINDINGS While the Agency’s decision cited to EEOC Regulation 29 C.F.R. § 1614.107(a)(1) in support of its dismissal of Complainant’s EEO complaint, the justification for their decision is unclear. What we do know from the record is that an EEO complaint concerning Complainant’s removal from employment was filed and investigated by the Agency; this complaint was initially considered by the Agency to be a “mixed case” complaint; Complainant filed an appeal with the MSPB, which was dismissed for lack of jurisdiction; Complainant then requested a hearing before an EEOC AJ; and while the hearing was pending, the Agency dismissed the EEO complaint. 29 C.F.R. § 1614.302(c) provides, in pertinent part, that if the MSPB's administrative judge finds that MSPB does not have jurisdiction over the matter, the agency shall recommence processing of the mixed case complaint as a non-mixed case EEO complaint. 29 C.F.R. § 1614.302(b) further provides, in pertinent part, that if a person files an appeal with MSPB from an agency's processing of a mixed case complaint and the MSPB dismisses it for jurisdictional reasons, the agency shall reissue a notice under § 1614.108(f) giving the individual the right to elect between a hearing before an administrative judge and an immediate final decision. Here, in MSPB Docket No. DC-0714-21-0659-I-1 (Oct. 20, 2021), an MSPB AJ dismissed Complainant’s appeal on this matter for lack of jurisdiction, reasoning that Complainant was appointed to his position in the excepted service pursuant to 38 U.S.C. § 7401(1), and such positions are expressly excluded from MSPB coverage pursuant to 5 U.S.C. § 7511(a)(10). 2 On May 25, 2022, following Complainant’s submission of the instant appeal, the AJ dismissed EEOC 570-2022-00556X finding they no longer had jurisdiction. 2022003115 3 At that point, Complainant was within his rights to request a hearing before an EEOC AJ on his removal claim. See Jene M. v. Dep’t of Homeland Sec., EEOC Appeal No. 2021000224 (Mar. 24, 2022) (finding that the complainant had a right to request a hearing before an EEOC AJ on a claim that could not be appealed to the MSPB due to lack of jurisdiction) (citing Chasity v. Dep’t of Homeland Sec., EEOC Appeal No. 0120140557 (Nov. 4, 2016) (finding that the agency should have bifurcated non-mixed allegations from mixed-case allegations, issuing final decision with appeal rights to MSPB only for mixed-case allegations and notifying complainant of right to request an EEOC hearing for the non-mixed allegations)). Under these circumstances, the Agency improperly issued a final decision regarding the complaint because, once Complainant requested an EEOC hearing, the Agency no longer had jurisdiction over the complaint. Therefore, we find the complaint should be remanded to the appropriate EEOC Hearings Unit to continue the EEO hearing process. CONCLUSION Based on a thorough review of the record, we REVERSE the Agency's final decision dismissing the complaint and REMAND the matter to the Agency for further processing in accordance with the Order below. ORDER Within thirty (30) calendar days from the date this decision is issued, the Agency shall submit a renewed hearing request on behalf of Complainant, as well as the complaint file and a copy of this appellate decision, to the Hearings Unit of the EEOC’s Washington Field Office. The Agency will provide written notification to the Compliance Officer at the address set forth below that the hearing request and complaint file have been transmitted to the designated Hearings Unit. The Agency shall also provide the Compliance Officer with the new hearing number within five (5) days of the assignment of the new hearing number. Thereafter, the Administrative Judge shall issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109, and the Agency shall issue a final action 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. 2022003115 4 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. 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. 2022003115 5 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). 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. 2022003115 6 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 November 2, 2022 Date Copy with citationCopy as parenthetical citation