[Redacted], Jimmy C., 1 Petitioner,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Feb 2, 2022

Petition No. 2022000919 (E.E.O.C. Feb. 2, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jimmy C.,1 Petitioner, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Petition No. 2022000919 MSPB No. PH-0752-21-0274-I-1 DECISION On November 19, 2021, Petitioner filed a petition with the Equal Employment Opportunity Commission (EEOC or Commission) asking for review of an initial decision issued by the Merit Systems Protection Board (MSPB) concerning his claim of 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.2 For the following reasons, we DENY consideration of the petition and REMAND the matter to the Agency for further processing. BACKGROUND At the time of events giving rise to this complaint, Petitioner worked as a Housekeeper, WG- 3566-02, at the Agency’s Martinsburg VA Medical Center in Martinsburg, West Virginia. Petitioner alleged that the Agency discriminated against him on the bases of race (African- American), color (black) and disability (physical) when: 1. In and around October 2019, the Manager, Reasonable Accommodation Program, revoked Complainant’s reasonable accommodation assignment. 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. 2 We note that the Agency has not challenged the timeliness of the petition. 2022000919 2 2. In and around October 2019, the Staffing Supervisor demoted Complainant to a position in the Laundry, Kitchen, or Housekeeping department; the demotion was at a lower rate of pay; 3. In and around October 2019, the Staffing Supervisor denied Complainant’s request to be reassigned as a Motor Vehicle Operator; and 4. On and about November 12, 2019, the Labor Management and Employee Relations Chief informed Complainant that if he did not accept the demotion paperwork, he would be terminated from employment. The Agency subsequently accepted and investigated the claim as a mixed case complaint. Petitioner requested a hearing on the complaint before an Equal Employment Opportunity Commission Administrative Judge (EEOC AJ). During the Initial Conference on January 25, 2020, the Agency made an oral motion to dismiss Petitioner’s hearing request on the grounds that the claim was accepted as a mixed case complaint and Petitioner should have received a Final Agency Decision (FAD). On February 1, 2021, an EEOC AJ dismissed Petitioner’s request for a hearing, explaining that there is no right to a hearing before an EEOC AJ on a mixed case complaint. Instead, Petitioner should have received an FAD with appeal rights to the MSPB. The EEOC AJ remanded the complaint to the Agency for a FAD. Subsequently, Petitioner filed an appeal with the MSPB. On October 13, 2021, the assigned MSPB AJ issued an initial decision that dismissed Petitioner’s appeal for lack of jurisdiction, finding that Petitioner’s reassignment in the context of the reasonable accommodation process is not independently actionable under the MSPB’s jurisdiction and Petitioner’s demotion was voluntary. The MSPB AJ's initial decision became the MSPB's final decision on November 17, 2021. The instant petition followed. ANALYSIS AND FINDINGS EEOC Regulations provide that the Commission has jurisdiction over mixed case 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. 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). 2022000919 3 In accordance with these principles, Petitioner's request for review is DENIED, and Petition No. 2022000919 is hereby closed. MSPB No. PH-0752-21-0274-I-1 is referred to the Agency for further processing as outlined below. To the extent that Petitioner, through counsel, requests consolidation of the instant matter with EEOC Hearing No. 530-2021-00047X, which is pending hearing before an EEOC AJ, Petitioner is advised that the request must be submitted to the EEOC AJ for consideration. ORDER Petitioner is advised that by operation of 29 C.F.R. § 1614.302(b), 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 and has previously requested a hearing before an EEOC AJ, the Agency shall, within thirty (30) calendar days of the date this decision is issued, submit a request to the EEOC Charlotte District Office Hearings Unit and notify Petitioner that the matter has been forwarded for a hearing. Thereafter, the AJ 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. 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. 2022000919 4 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. 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 February 2, 2022 Date