Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Sep 4, 2013

0120113863 (E.E.O.C. Sep. 4, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120113863

Hearing No. 430-2010-00043X

Agency No. 2004-0659-2009102388

DECISION

Complainant filed a timely appeal with this Commission from the July 20, 2011 final Agency
decision (FAD) 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 the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission accepts the appeal
pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission VACATES
the Agency's final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Program Support
Assistant at the VA Medical Center in Salisbury, North Carolina. On July 7, 2009,
Complainant filed a formal complaint alleging that the Agency subjected him to discrimination
on the bases of age (64) and in reprisal for prior protected EEO activity when:

1. On March 31, 2009, he received a letter of reassignment to the Health and
Travel Benefits Section of the Health Administration Services effective April 13,
2009; and

2. On April 3, 2009, he retired to avoid the above-referenced reassignment
resulting in his constructive discharge.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an EEOC
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Administrative Judge (AJ). Complainant requested a hearing, but the AJ dismissed the hearing
request as a sanction for Complainant’s failure to cooperate with her pre-hearing orders. The
AJ remanded the complaint to the Agency and the Agency issued a FAD pursuant to 29 C.F.R.
§ 1614.110(b).

In the FAD, the Agency assumed arguendo that Complainant established a prima facie case of
discrimination and reprisal and found that management articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, as to the reassignment, the Chief of the
Health Information Management Section stated that Complainant was reassigned to help him
succeed in his work. The Chief noted that management had received recurring customer
complaints about Complainant’s rude behavior and that Complainant’s supervisor had
counseled him verbally and in writing concerning the complaints. Complainant’s supervisor
added that Complainant received more customer complaints than any other Program Support
Assistant. As a result, Complainant was reassigned to improve customer service. The Agency
found that Complainant failed to show that management’s reasons for reassigning him were
pretextual and therefore he had not been discriminated or retaliated against as alleged.

Regarding his constructive discharge/retirement claim, the Agency concluded that Complainant
failed to establish that a reasonable person would have found the reassignment position
intolerable. The evidence showed that Complainant chose to retire and that he did not present
any evidence to establish that he was subjected to intolerable working conditions. Thus, the
Agency found that Complainant had not been constructively discharged.

The Agency provided Complainant with appeal rights to the Commission for claim (1), but
informed Complainant that claim (2) was a mixed-case complaint and could only be appealed
to the Merit Systems Protection Board (MSPB). Complainant filed the instant appeal without
submitting any arguments or contentions in support.

ANALYSIS AND FINDINGS
Mixed Case Complaint

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). An aggrieved person may initially file a mixed-case complaint with an
agency or may file a mixed-case appeal directly with the MSPB, pursuant to 5 C.F.R. §
1201.151, but not both. 29 C.F.R. § 1614.302(b). Further, an agency is required to inform
every employee who is the subject of an action which is appealable to the MSPB, and who has
raised the issue of discrimination “during the processing of the action,” of the right to file a
mixed-case complaint or to file a mixed-case appeal with the MSPB. See Gray v. U.S. Postal
Serv., EEOC Request No. 05910824 (Dec. 19, 1991); Lauderdale v. Dep't of the Army,
EEOC Request No. 05910033 (Feb. 15, 1991). An agency's decision on the merits of a
mixed-case complaint is appealable to the MSPB, not the Commission. 29 C.F.R.
§ 1614.302(d)(l)(ii).
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In this case, Complainant alleged that the Agency involuntarily reassigned him which resulted
in his constructive retirement. Generally, constructive discharge/retirement claims alleging
discrimination are processed as mixed-case complaints. See 5 C.F.R. § 752.401(a)(1); 29
C.F.R. § 1614.302(a) & (d). Upon review of the record, the Commission determines that
claim (1) which alleges that Complainant was involuntarily reassigned is inextricably
intertwined with claim (2), Complainant’s constructive retirement claim. Specifically,
Complainant contends that he did not request the reassignment and that he was forced to retire
in order to avoid the undesirable changes associated with the reassignment. Complainant
claims that management wanted to reassign him to a position of which he had no knowledge to
set him up to be fired. Adjudication of the reassignment claim is necessary in order to
determine whether or not Complainant’s retirement was “voluntary.” Therefore, the
Commission concludes that claim (1) is inextricably intertwined with Complainant's
constructive discharge claim.

Consequently, the Agency should have advised Complainant of his right to appeal its decision
in its entirety to the MSPB. See 29 C.F.R. §1614.302(d)(l)(ii). As such, the Commission
finds that the Agency misinformed Complainant when it stated that claim (1) could be appealed
to the Commission. See Webb v. Dep't of the Air Force, Appeal No. 01A45789 (Sept. 22,
2006) (Agency should have issued a decision with appeal rights to the MSPB in mixed-case
complaint wherein complainant alleged constructive discharged when forced to retire because
of harassment); Spaulding v. U.S. Postal Serv., EEOC Appeal No. 01A41443 (Apr. 16,
2004). In light of the Agency's error, the Commission REMANDS the matter to the Agency
for re-issuance of its final decision together with appropriate appeal rights.

CONCLUSION

Accordingly, the Commission VACATES the Agency's final decision and REMANDS this
matter to the Agency for further processing in accordance with this decision and the ORDER
below.
ORDER

Within thirty (30) calendar days of the date this decision becomes final, the Agency is
ORDERED to issue a new final decision on Complainant's mixed-case complaint that contains
proper appeal rights to the MSPB. A copy of the Agency's new final decision and notice of
appeal rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)

Compliance with the Commission’s corrective action is mandatory. The Agency shall submit
its compliance report within thirty (30) calendar days of the completion of all ordered
corrective action. The report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and the Agency must
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send a copy of all submissions to the Complainant. 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.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614

(EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark,
the request to reconsider shall be deemed timely filed if it is received by mail within five days
of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or
opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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).

0120113863

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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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

September 4, 2013
Date