0120142584
11-22-2016
Herb P.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Herb P.,1
Complainant,
v.
Loretta E. Lynch,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120142584
Hearing No. 420-2012-00206X
Agency No. BOP-2012-0242
DECISION
On July 3, 2014, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final order dated June 13, 2014, agreeing with the decision of an Equal Employment Opportunity Commission AJ dismissing his request for a hearing on his complaint of 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. While the appeal was pending, on August 27, 2014, the Agency issued a final Agency decision (FAD) finding no discrimination. As Complainant's appeal was pending when the FAD was issued, this perfected his appeal. The appeal is accepted.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Complex Captain, GS-13 and Unit Manager, GS-12 at the Agency's Federal Correctional Complex in Yazoo City, Mississippi.
On January 23, 2012, Complainant filed a formal complaint alleging that the Agency discriminated against him based on his race (Pacific Islander who appears to be White) when from June 2011 to October 2011, he was subjected to hostile work environment harassment daily in the form of unwarranted criticism of his work performance, yelling, and disciplinary threats, which forced him to accept a constructive demotion from GS-13 Complex Captain to GS-12 Unit Manager on October 24, 2011.
Following an investigation, Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
On May 30, 2014, the AJ dismissed Complainant's request for a hearing. The AJ reasoned that Complainant's complaint involved an issue - demotion - which was appealable to the Merit Systems Protection Board (MSPB), and hence he did not have right to request a hearing before an Equal Employment Opportunity Commission AJ. 29 C.F.R. � 1614.302. The AJ remanded Complainant's complaint for appropriate Agency action.
On remand, on June 13, 2014, the Agency issued a decision agreeing with the AJ's order dismissing Complainant's hearing request. On appeal, Complainant wrote that he was challenging the decision of the AJ and did not believe his complaint was mixed. He also argued the merits of his case. Thereafter, on August 27, 2014, the Agency issued a FAD finding no discrimination. The Agency gave appeal rights to the MSPB, not the EEOC.
On September 25, 2014, Complainant filed a timely appeal with the MSPB. On December 5, 2014, the MSPB issued an initial decision without a hearing dismissing the appeal for lack of jurisdiction. On June 5, 2015, the MSPB denied Complainant's petition to review the initial decision. It reasoned that its initial decision properly dismissed the appeal for lack of jurisdiction.
ANALYSIS AND FINDINGS
A mixed case complaint is a complaint of employment discrimination filed with a federal agency based on race, color, religion, sex, national origin, age, disability, or genetic information related to or stemming from an action that can be appealed to the MSPB. 29 C.F.R. � 1614.302(a)(1).2 If the MSPB's administrative judge finds that the 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(c)(2)(ii). Such is the case here.
Accordingly, the Agency's final order is REVERSED, and its FAD is VACATED. The Agency shall comply with the order below.
ORDER
The Agency shall request a hearing on behalf of Complainant with the appropriate EEOC Hearings Unit. In so doing, it shall provide a brief explanation for doing so, and include a copy of this decision. The Agency shall complete these actions within thirty-five (35) calendar days of the date this decision was issued.
A copy of the hearing request and accompanying letter of explanation 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 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 (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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).
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
November 22, 2016
__________________
Date
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 In Complainant v. Inter-American Foundation, EEOC Appeal No. 0120132968 (Jan. 8, 2014), the Commission found that where a complaint contains related mixed and non-mixed matters, the non-mixed matters should continue to be processed in the 29 C.F.R. Part 1614 process. We essentially reversed the doctrine of "inextricably intertwined" as a reason for dismissing non-mixed matters that were connected to a mixed matter since the MSPB informed the Commission that it does not have jurisdiction over the non-mixed matters (even if they are connected with mixed matters). See also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 4-1 to 4-2 (Revised Aug. 5, 2015). We note, however, that a proposed action merges with the decision on an appealable matter - for example, a proposed removal merges into the decision to remove. Id.
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