[Redacted], Trina C., 1 Complainant,v.Deb A. Haaland, Secretary, Department of the Interior (Bureau of Reclamation), Agency.

Equal Employment Opportunity Commission

Mar 20, 2023

Appeal No. 2021005093 (E.E.O.C. Mar. 20, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Trina C.,1 Complainant, v. Deb A. Haaland, Secretary, Department of the Interior (Bureau of Reclamation), Agency. Appeal No. 2021005093 Agency No. DOI-BOR-18-0612MIX DISMISSAL OF APPEAL Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s decision dated May 24, 2021, 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 following reasons, we DISMISS the appeal. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Secretary, GS- 0318-06, at the Agency’s Mid-Pacific Regional Office, Facilities Engineering Branch in Sacramento, California. On September 18, 2018, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination under Title VII and the Rehabilitation Act. The Agency subsequently accepted the complaint for investigation on January 4, 2019, and framed the claims in the following manner: 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. 2021005093 2 1. Whether Complainant was discriminated against based on her disability (mental) when she was forced to put her leave (Disabled Veteran’s Utilization and sick leave) on a shared calendar. 2. Whether Complainant was discriminated against based on race (Black), sex (female), and disability (physical) when her supervisor refused her requests for telework in June 2018. 3. Whether, in addition to the foregoing claims, Complainant was subjected to a hostile work environment based on race (Black), sex (female), disability (physical), and/or reprisal (filing the instant EEO complaint). Shortly after receiving the Agency’s acceptance letter, Complainant requested an amendment to the complaint to include: 4. Whether, as a result of the foregoing claims, and on the bases of disability (mental), race (Black), sex (female), and reprisal (filing the instant EEO complaint), Complainant was constructively discharged from her position on February 15, 2019. On April 19, 2019, the Agency issued Complainant a revised acceptance letter, informing her that, since her constructive discharge claim constituted a mixed case matter, the Agency would bifurcate claim 4 from claims 1 to 3 and process them separately. The Agency advised Complainant that following the investigation, it would issue a final agency decision (FAD) on claim 4, and Complainant could appeal that decision to the Merit Systems Protection Board (MSPB) if she disagreed with the Agency’s determination. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation. Complainant requested a hearing before an AJ on claims 1 to 3. The Agency then issued a FAD solely on the merits of claim 4. The Agency concluded that Complainant failed to show had been constructively discharged because of her protected bases and provided Complainant with appeal rights to the Merit Systems Protection Board (MSPB), not the EEOC. CONTENTIONS ON APPEAL On appeal, Complainant reiterates that she “was subjected to a hostile work environment which led to constructive discharge.” The Agency did not file any contentions in response to Complainant’s appeal. 2021005093 3 ANALYSIS AND FINDINGS As an initial matter, we note that claims 1 to 3 were not the subject of the Agency’s May 24, 2021 FAD and are not currently before us in the instant appeal. As for claim 4, the Agency identified this matter as a 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, but not both. 29 C.F.R. § 1614.302(b). As a general matter, if Complainant is dissatisfied with the Agency's final decision on a mixed case complaint, Complainant may appeal the matter to the MSPB (not EEOC) within 30 days of receipt of the Agency's final decision. 29 C.F.R §1614.302(d)(1)(ii). Regarding claim 4, the Agency determined that this claim was a mixed-case complaint and issued a final decision finding no discrimination. The final decision included the appropriate mixed-case appeal rights and instructed Complainant to file with the MSPB, not the EEOC. Complainant at this time has no appeal rights to EEOC. Accordingly, the appeal is DISMISSED.2 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). 2 We note that the Commission's regulations require that, should the MSPB dismiss an appeal 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). 2021005093 4 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. 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 (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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. If you file a request to reconsider and also file a civil action, 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. 2021005093 5 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 March 20, 2023 Date