Lynette F.,1 Complainant,v.Emily W. Murphy, Administrator, General Services Administration, Agency.

Equal Employment Opportunity Commission

Sep 30, 2019

0120181987 (E.E.O.C. Sep. 30, 2019)

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

Lynette F.,1
Complainant,

v.

Emily W. Murphy,
Administrator,
General Services Administration,
Agency.

Appeal No. 0120181987

Hearing No. 570-2018-00792X

Agency No. GSA-17-CO-Z-0118

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency's final decision dated April 20, 2018, concerning her 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., and Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the reasons that follow, the
Commission VACATES the Agency’s final decision and REMANDS this matter for further
proceedings.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a GS-0343-13
Program Analyst at the Agency’s Office of Strategic Communication, Operations Division,
Digital Communication Program Management Office in Washington, D.C. On June 2, 2017,
Complainant filed a formal complaint alleging that the Agency subjected her to discrimination
on the bases of disability (chronic pruritis, fibromyalgia, rheumatoid arthritis, chronic fatigue
syndrome, skin lesions, and migraine headaches) and reprisal for prior protected EEO activity
when she was constructively discharged on February 4, 2017, the effective date of her disability
retirement.

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.
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The Agency dismissed Complainant’s complaint for untimely EEO Counselor contact.
Complainant appealed the dismissal of her complaint, and the Commission reversed the
Agency’s procedural dismissal. Lynette F. v. General Services Administration, EEOC Appeal
No. 0120172475 (Oct. 13, 2017). On November 24, 2017, the Agency accepted the remanded
matter for investigation and notified Complainant that it was processing the matter as a mixed-
case complaint appealable to the Merit Systems Protection Board (MSPB).

On March 16, 2018, the Agency provided Complainant with a copy of the Report of
Investigation (ROI) and notice that she could not request a hearing before an EEOC
Administrative Judge (AJ) because it was a mixed-case complaint. The Agency notified
Complainant of her right to file an appeal with the MSPB or to file a civil action. On April 4,
2018, Complainant submitted a hearing request to the Hearings Unit of the EEOC’s Washington
Field Office, and the matter was docketed as Hearing No. 570-2018-00792X.

On April 20, 2018, the Agency issued a final decision with appeal rights to the MSPB. The
decision concluded that Complainant failed to prove that the Agency subjected her to
discrimination as alleged. On May 22, 2018, Complainant filed an appeal with the MSPB from
the Agency’s final decision finding no discrimination. On July 30, 2018, an MSPB AJ issued an
initial decision dismissing Complainant’s appeal for lack of jurisdiction.

On May 21, 2018, the day before she filed her appeal with the MSPB, Complainant filed the
instant appeal with the Commission. Complainant requested an extension of time to file a
statement or brief in support of her appeal, and the Commission extended the deadline to July 23,
2018. On July 19, 2018, Complainant submitted a brief, requesting that the Commission “reverse
the Agenc[y’s] final decision and findings to dismiss her constructive discharge complaint, make
a determination in her favor, and [order] any other relief the Commission deems appropriate.”
Complainant Brief at 45.

The Commission takes notice that on March 12, 2019, Complainant filed a civil action in the
U.S. District Court for the Southern District of Texas (Civil Action No. 4:19-cv-00893). The
matter alleged violations of Title VII and the Rehabilitation Act, including a constructive
discharge claim. On May 30, 2019, the civil action was dismissed without prejudice for failure to
prosecute.

According to the Commission’s records, on May 9, 2019, the EEOC’s Washington Field Office
assigned the matter to an AJ. On May 16, 2019, the AJ dismissed Complainant’s hearing request
for lack of jurisdiction because the Agency had issued its April 20, 2018, final decision with
appeal rights to the MSPB.

CONTENTIONS ON APPEAL

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On appeal, Complainant contends that the Agency improperly framed the claim as a constructive
discharge. According to Complainant, her EEO complaint alleged discrimination when her
requests for reasonable accommodation were denied between July 2015 through the effective
date of her disability retirement. Complainant also contends that the ROI is incomplete because it
does not contain complete time and attendance records from January 2015 through 2017 or the
affidavits Complainant submitted in connection with previously filed EEO complaints.
Complainant asserts that she established that she was repeatedly denied reasonable
accommodation and that she was subjected to a hostile work environment that culminated in her
constructive discharge.

The Agency did not provide a statement or brief in response to Complainant’s appeal.

ANALYSIS AND FINDINGS

Here, the MSPB dismissed Complainant’s appeal from the Agency’s final decision for lack of
jurisdiction. The Commission's regulation at 29 C.F.R. § 1614.302(b) states, in relevant part, “If
a person files a timely appeal with MSPB from the 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.” There is no evidence in the record that the
Agency issued Complainant such a notice after the MSPB dismissed her discrimination claim for
jurisdictional reasons. Accordingly, we will remand this matter to the Agency to reissue a notice
under 29 C.F.R. § 1614.108(f) giving Complainant the right to elect a hearing before an EEOC
AJ or an immediate final decision.2 See 29 C.F.R. § 1614.302(b); Jasper S. v. U.S. Postal Serv.,
EEOC Appeal No. 2019001713 (Apr. 25, 2019).

With respect to Complainant’s contention on appeal that the Agency incorrectly framed her
complaint by omitting her allegations that she was denied various reasonable accommodations
beginning in 2015, the Commission’s records indicate that on October 18, 2018, an EEOC AJ in
the Washington Field Office dismissed three consolidated EEO complaints after Complainant
requested a final decision from the Agency. Furthermore, the record establishes that two of the
complaints, Agency Nos. GSA-15-CO-Z-0153 and GSA-16-CO-Z-0196, concern the alleged
denial of reasonable accommodations in 2015 and 2016 that Complainant references in her
statement on appeal. It is not clear whether the Agency has issued a final decision on these
matters. If the Agency has not yet issued its final decision on Agency Nos. GSA-15-CO-Z-0153

2 In certain circumstances, the Commission would remand the matter to the Hearings Unit for a
decision on the merits by an AJ. See Rafaela B. v. U.S. Postal Serv., EEOC Appeal No.
0120152966 (Oct. 26, 2017) (remanding matter to Hearings Unit because complainant requested
a hearing on appeal and because agency did not dispute entitlement to a hearing). However, in
the instant case, Complainant filed a hearing request on April 4, 2018, prior to the issuance of the
Agency’s final decision, but her July 19, 2018, statement on appeal requested that the
Commission review the merits of the Agency’s final decision. Therefore, the record is not clear
as to whether Complainant wants to request a hearing.
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and GSA-16-CO-Z-0196, Complainant may request that, to the extent practicable, that the
Agency consolidate the instant matter with those complaints.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we VACATE the Agency’s final decision on the merits of
Complainant’s complaint and REMAND the matter for further processing in accordance with
this decision and the ORDER below.

ORDER

Within thirty (30) calendar days of the date this decision is issued, the Agency shall issue
Complainant a notice of her right to request a hearing or to request an immediate final decision
from the Agency. The Agency shall notify Complainant that she has thirty (30) calendar days
from the date she receives the notice to request a hearing or to request an immediate final
decision. If Complainant requests a final decision without a hearing, the Agency shall issue a
final decision with the appropriate appeal rights within sixty (60) calendar days of receipt of
Complainant’s request.

As provided in the statement entitled “Implementation of the Commission's Decision,” the
Agency must send the following documentation to the Compliance Officer: a copy of the notice
of rights; and one of the following: (1) a copy of Complainant's request for a hearing; (2) a copy
of Complainant's request for a final decision; or (3) a statement from the Agency that it did not
receive a response from Complainant by the end of the election period.

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
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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 CFR § 1614.503(f) for enforcement by that agency.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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)
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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

September 30, 2019
Date