Alfonso H.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency.

Equal Employment Opportunity Commission

Aug 28, 2019

2019003466 (E.E.O.C. Aug. 28, 2019)

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

Alfonso H.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Food Safety and Inspection Service),
Agency.

Appeal No. 2019003466

Agency No. FSIS-2019-00099

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision (Dismissal) dated April 12, 2019, dismissing 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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Food Technologist
and International Issue Analyst, GS-14, at the Agency’s Food Safety and Inspection Service
facility in Washington D.C.

On April 8, 2019, Complainant filed a formal complaint alleging that the Agency subjected him
to discrimination on the bases of national origin (Egypt), religion (Muslim), disability, age (73),
and/or reprisal for prior protected EEO activity 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.
2019003466

2

1. on October 30, 2018, Complainant was issued his Fiscal Year 2018 Performance
Appraisal and received a rating of "Does Not Meet"; and

2. on November 16, 2018, Complainant was put on administrative leave and issued a
Notice of Proposed Removal.

The Agency dismissed the claims on the grounds that Complainant had previously filed the same
claims with the Merit Systems Protection Board (MSPB). The instant appeal followed.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. § 1614.107(a)(4) provides that if a person files a mixed case appeal
with the MSPB and subsequently files an EEO complaint on the same matter the agency shall
dismiss the complaint.

Here, the record establishes that, by letter dated February 4, 2019, the Agency issued
Complainant a final decision upholding the proposed removal and terminating his employment.
Complainant retired from the Agency in lieu of termination effective February 12, 2019. He
filed an appeal with the MSPB from his “Involuntary Retirement” on February 24, 2019. The
matter is currently pending at the MSPB.

Prior to this, on October 30, 2018, Complainant had made initial contact with an Agency EEO
counselor upon receipt of his 2018 performance appraisal. For reasons unclear in the record,
Complainant was not issued a notice of right to file a formal complaint on this matter until
February 5, 2019,2 and filed his formal EEO complaint on March 18, 2019,3 as evidenced by the
postmark on the envelope containing the complaint.

We affirm the Agency’s decision to dismiss that portion of Complainant’s EEO complaint
concerning the November 2018 notice of proposed removal. Once a final decision of removal
was issued to Complainant in February 2019, the two actions (proposed and final decision of
removal) merged. It is clear that issue of Complainant’s removal (constructive discharge) was
appealed to the MSPB prior to the filing of his EEO complaint and is currently pending there.

However, in his EEO complaint, Complainant also challenged his October 30, 2018 performance
appraisal and sought EEO counseling on the same day. Even if Complainant tried to include this
matter in his MSPB appeal, there is significant reason to believe that the MSPB does not have
jurisdiction over this matter.

2 29 C.F.R. § 1614.105(d) provides that in most cases, the notice of right to file should be issued
within thirty days of the initial EEO counseling.

3 The Agency concedes that there was some delay in Complainant receiving the notice of right to
file, and represents he received it by certified mail on March 8, 2019.
2019003466

3
29 C.F.R. § 1614.302(c)(2)(ii) provides that when considering dismissing an EEO claim because
the same matter has already been raised in an MSPB appeal, when there is a question of the
MSPB’s jurisdiction over the claim, the agency shall hold the claim in abeyance until the MSPB
AJ rules on the jurisdictional issue. If the MSPB dismisses the matter for jurisdictional reasons,
the agency shall recommence processing the claim as a non-mixed EEO complaint. If the MSPB
AJ finds that the MSPB does have jurisdiction, the Agency can then dismiss the mixed case
complaint pursuant to § 1614.107(d).

In the present case, given that the MSPB decision is still pending, the issue of jurisdiction over
the appraisal claim has not been decided or addressed. We therefore find that the Agency should
have held this matter in abeyance pending an MSPB jurisdictional decision rather than issuing an
immediate dismissal.4

CONCLUSION

The Agency’s dismissal decision concerning the performance appraisal claim is VACATED and
we REMAND the claim to the Agency for further processing in according with this decision and
the Order below.

ORDER

The Agency is ordered to hold the claim in abeyance until the MSPB rules on the issue of
jurisdiction. If the MSPB AJ finds that the MSPB does not have jurisdiction and dismisses the
appeal om such grounds, the Agency shall recommence processing of the claim as a non-mixed
EEO complaint. During such time as the matter is in abeyance, all time limitations for processing
or filing will be tolled. If the MSPB AJ finds that the MSPB does have jurisdiction, the Agency
shall dismiss the claim pursuant to 29 C.F.R. § 1614.107(d) and advise the Complainant of the
right to petition the EEOC to review the MSPB’s final decision on the issue(s) of discrimination.

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.

4 It is noted that this same reasoning would apply to the removal (constructive discharge) if the
MSPB should also decide it does not have jurisdiction over this claim too.
2019003466

4
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).
2019003466

5
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

August 28, 2019
Date