0120171775
10-12-2018
Patrick S.,1 Complainant, v. Peter O'Rourke, Acting Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Patrick S.,1
Complainant,
v.
Peter O'Rourke,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120171775
Agency No. 2004-0652-2015105546
DECISION
On April 21, 2017, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's March 22, 2017 final decision concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked for the Agency as an Advanced Medical Support Assistant, GS-0679-06 in Richmond, Virginia.
The record reflects the following chronology of events.
On January 4, 2016, Complainant filed a formal EEO complaint, claiming that the Agency discriminated against him based on sex (male) and age. By letter dated February 4, 2016, the Agency accepted the formal complaint for investigation and determined that it was comprised of the following claim:
Complainant was subjected to a hostile work environment based on sex and age, when on September 14, 2015, he was forced to resign from his position.
Complainant requested a hearing before an EEOC Administrative Judge (AJ). On December 13, 2016, the Agency filed a Motion to Dismiss Hearing Request. The Agency reasoned that the EEOC did not have jurisdiction over this matter. Specifically, the Agency asserted that the complaint was a mixed case complaint and that the Merit Systems Protection Board (MSPB) should have jurisdiction over it. The Agency requested the EEOC AJ to dismiss the hearing request and to order the Agency to issue a final decision with appeal rights to the MSPB.
On January 18, 2017, the EEOC AJ granted the Agency's motion. The AJ remanded the matter to the Agency for issuance of a final decision with appeal rights to the MSPB. Complainant subsequently filed an appeal with the MSPB.
In MSPB No. DC-0752-17-0283-I-1 (March 16, 2017), an MSPB AJ dismissed Complainant's appeal for lack of jurisdiction. Subsequently, on March 22, 2017, the Agency issued a final decision finding no discrimination. The Agency provided Complainant with appeal rights to the EEOC's Office of Federal Operations regarding the hostile work environment claim. However, the Agency, in its final decision, provided Complainant appeal rights to the MSPB (not the EEOC) on the forced resignation claim.
The instant appeal followed. On appeal, Complainant, through his attorney at the time, asserts that the Agency did not issue a final decision until the MSPB had dismissed the matter for lack of jurisdiction. Thus, Complainant requests that this matter be forwarded to an EEOC AJ for a hearing.
In response, the Agency requests that we affirm its decision finding no discrimination. The Agency asserts that if Complainant is dissatisfied with the MSPB's dismissal he should take up this matter with the MSPB.
ANALYSIS AND FINDINGS
The Commission's regulations governing the processing of mixed cases require that, should the MSPB dismiss an appeal on a mixed case complaint for lack of jurisdiction, the agency is required to recommence processing the matter as a non-mixed case. 29 C.F.R. � 1614.302(c)(2)(ii).
The Agency erred in issuing a final decision on March 22, 2017 (subsequent to the MSPB's March 16, 2017 final decision) in the instant matter with appeals rights on the forced resignation to the MSPB. The MSPB, as set forth, above, already issued a decision dismissing this matter for lack of jurisdiction. Thus, this matter should now be processed as a non-mixed case. In this matter, the record reflects that this case was previously before an EEOC AJ. In addition, Complainant, on appeal indicates his desire for a hearing before an EEOC AJ.
Based on the foregoing, we REVERSE the Agency's final decision and REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER
Within thirty (30) calendar days from the date this decision is issued, the Agency shall submit a request for a hearing and the complaint file to Hearings Units of the appropriate EEOC field office. The Agency shall provide written notification to the Compliance Officer, as set forth below, that the complaint file has been transmitted to the Hearings Unit. Thereafter, an EEOC 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 (K0618)
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.
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)
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
October 12, 2018
__________________
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.
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