[Redacted], Don F., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jun 21, 2022

Appeal No. 2022002605 (E.E.O.C. Jun. 21, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Don F.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2022002605 Hearing No. 560-2021-00205X Agency No. ARMCAAP21DEC00165 DECISION On April 4, 2022, 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 8, 2022, final concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, we VACATE the Agency’s final order and REMAND the matter for further processing. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Industrial Property Management Specialist, GS-1103-11, at the Agency’s Lake City Army Ammunition Plant in Independence, Missouri. On February 8, 2021, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of disability (physical). Following an amendment to his complainant, the Agency accepted Complainant’s claims of discrimination when: 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. 2022002605 2 1. On November 24, 2020, he was denied Family Medical leave due to a serious health condition and was listed as absent without leave (AWOL) on the pay periods of October 25, 2020, November 8, 2020, and November 22, 2020, due to his disability by his first and second level supervisors; and 2. On November 24, 2020, he resigned from his position at Lake City Army Ammunition Plant due to his fear of being subjected to continued harassment and a hostile work environment by his first and second level supervisors, which resulted in 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant elected a hearing. The EEOC AJ assigned to the matter ultimately dismissed Complainant’s claim of discharge without prejudice on December 28, 2021, so that Complainant could pursue a mixed-case appeal with the Merit Systems Protection Board (MSPB). In dismissing the claim, the EEOC AJ expressly ordered the Agency to undertake the following action: [I]n the event the MSPB denies jurisdiction, Complainant should not be referred back to an EEO counselor, but rather, the Agency is to notify the undersigned directly that Complainant chooses to reinstate his hearing request and proceed forward with this complaint before the undersigned such that a new Initial Conference can be scheduled. See Order of Dismissal Without Prejudice at 1-2 Though Complainant subsequently filed a mixed-case appeal with the MSPB, the assigned MSPB AJ issued an initial decision on February 17, 2022, dismissing the complaint for lack of jurisdiction. The initial decision was scheduled to become final on March 24, 2022; however, on March 8, 2022, the Agency issued a final order fully implementing the EEOC AJ’s Order of Dismissal Without Prejudice and provided Complainant with appeal rights to the Commission. This appeal followed. Neither party filed contentions on appeal. 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 long 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. Having reviewed the record, we find that the Agency erred in issuing a final order implementing the EEOC AJ’s Order of Dismissal Without Prejudice. 2022002605 3 We fail to understand the Agency’s reasoning for issuing that order. We note that the EEOC AJ carefully delineated the steps the Agency should take in the event the MSPB found no jurisdiction so that the complaint could be processed as a non-mixed complaint; however, it is apparent to us that the Agency did not comply with those instructions. As the Agency has not properly “unmixed” the complaint in accordance with the EEOC AJ’s orders, we shall VACATE the Agency’s final order and REMAND the matter to the Agency for further processing in the manner directed by the EEOC AJ. ORDER “[T]he Agency is to notify the [EEOC AJ] directly that Complainant chooses to reinstate his hearing request and proceed forward with this complaint before the [EEOC AJ] such that a new Initial Conference can be scheduled.” See Order of Dismissal Without Prejudice at 1-2. Thereafter, the EEOC AJ shall issue a decision pursuant to 29 C.F.R. § 1614.109(b), (g) or (i), and the Agency shall, in turn, issue a final action pursuant to § 1614.110. A copy of the notification shall be provided to the Compliance Officer listed below. 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 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. 2022002605 4 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. 2022002605 5 Any supporting documentation must be submitted together with the 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 June 21, 2022 Date