[Redacted], Lashawn C., 1 Petitioner,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Jan 26, 2023

Petition No. 2023000218 (E.E.O.C. Jan. 26, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lashawn C.,1 Petitioner, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Petition No. 2023000218 MSPB No. PH-315H-21-0267-I-1 DENIAL OF CONSIDERATION On October 14, 2022, Petitioner filed a petition with the Equal Employment Opportunity Commission (EEOC or Commission) asking for review of a final order issued by the Merit Systems Protection Board (MSPB) concerning her 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. For the following reasons, we DENY consideration of the petition and shall REMAND the matter to the Agency for further processing. BACKGROUND At the time of events giving rise to this complaint, Petitioner worked as a Mechanical Engineer, GS-0830-12, at the Naval Surface Warfare Center (NSWC), Philadelphia Division, in Philadelphia, Pennsylvania. She joined the Agency on August 3, 2020, subject to a two-year probationary period. Prior to the completion of her probationary period, the Agency removed Petitioner from federal service for allegedly engaging in repeated, inappropriate, and unprofessional conduct. See Initial Appeal File (IAF) at 5-6. The removal action became effective on June 8, 2021. On June 17, 2021, Petitioner challenged her removal by filing an appeal directly with the MSPB and argued that her termination was pretext for discrimination. 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. 2023000218 2 In so arguing, Petitioner claimed that during her time at the NSWC, “management and lead engineers” subjected her to discriminatory bullying by commenting on her “non-native” accent and discouraging her from asking questions by “saying discriminatory things about [her] pronunciation, emails, and how [she writes].” See IAF at 4 and 15-22. Petitioner also emphasized her history of rectal, joint, back, and neck pain and alleged that “management and lead engineers” harmed her by sending her “on a work-related trip intentionally to cause physical and mental trauma” and failing to call medical services when she suffered a medical incident on April 8, 2021. Id. Given the circumstances surrounding her removal, Petitioner maintained that her removal was improper. Id. On July 8, 2021, the assigned MSPB Administrative Judge (AJ) issued an initial decision dismissing Petitioner’s appeal for lack of jurisdiction as the probative record showed that Petitioner had been removed from federal service prior to the completion of her probationary period for post-appointment related reasons. The MSPB AJ’s decision became final on August 12, 2021. Petitioner filed the instant petition with the Commission on October 14, 2022, seeking review of the MSPB’s decision. In support of her petition, Complainant largely reiterates the same arguments that she previously raised in her initial appeal. The Agency, however, vehemently opposes the petition and asserts that the Commission does not have jurisdiction over the matter, as Petitioner never alleged discrimination before the MSPB. 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. We ultimately find that this matter should be processed as a “non-mixed” case, as our review of Petitioner’s initial appeal shows that she alleged, in relevant part, that the way management bullied her about her accent suggested that the Agency’s articulated reasons for removing her were pretext for discrimination based on national origin. Furthermore, our review of Petitioner’s initial appeal also shows that Petitioner alleged that prior to her removal the Agency harassed her by refusing her medical services and sending her on work related trips despite her history of pain to cause her physical and mental trauma. Given these allegations, we DENY consideration of the petition and shall administratively close it. On remand, the Agency shall process MSPB No. PH- 315H-21-0267-I-1 as a non-mixed case. See e.g., 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); and 29 C.F.R. § 1614.302(c)(2)(i) and (ii). 2023000218 3 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 her allegations of discrimination. Because Petitioner filed a mixed-case appeal with the MSPB, the Agency, pursuant to 29 C.F.R. § 1614.105 et seq., shall notify Petitioner of her right to contact an EEO counselor within forty-five (45) days of receipt of this decision, and to file an EEO complaint, subject to 29 C.F.R § 1614.107. The date on which the Petitioner filed the appeal with the MSPB shall be deemed the date of initial contact with the EEO counselor. 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. 2023000218 4 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 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 January 26, 2023 Date