0320160061
08-25-2016
Archie D.,1 Petitioner, v. Penny Pritzker, Secretary, Department of Commerce (National Institute of Standards and Technology), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Archie D.,1
Petitioner,
v.
Penny Pritzker,
Secretary,
Department of Commerce
(National Institute of Standards and Technology),
Agency.
Petition No. 0320160061
MSPB No. DC-0752-14-0284-B-1
DECISION
On August 15, 2016, Petitioner filed a petition with the Equal Employment Opportunity Commission asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning his claim of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. For the following reasons, we DENY Petitioner's petition for review.
BACKGROUND
Petitioner worked as a supervisory Health Physicist at the Agency's National Institute of Standards and Technology in Gaithersburg, Maryland. Petitioner alleged that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, when on March 25, 2012, it reassigned him to a non-supervisory position Health Physicist. Petitioner remained at the same pay band, but no longer received supervisory differential pay.2
On January 1, 2014, Petitioner filed an appeal before the MSPB claiming that the Agency constructively demoted him. On February 12, 2014, an MSPB Administrative Judge (AJ) issued an initial decision dismissing the appeal for lack of jurisdiction because the cancellation of Petitioner's supervisory differential did not constitute an appealable reduction in pay. Additionally, the AJ found that Petitioner did not non-frivolously allege facts to support a constructive demotion claim.
On March 19, 2014, Petitioner filed a petition for review. On December 16, 2014, the MSPB issued a decision finding that Petitioner had non-frivolously alleged that he suffered a constructive demotion because he claimed that the Agency redistributed his supervisory responsibilities amongst seven employees, and "upgraded [his] former supervisory position and duties due to an apparent classification issue," after it reassigned him to the nonsupervisory position. The MSPB remanded the appeal to give Petitioner an additional opportunity to establish that his appeal was timely filed, or that good cause existed for the delay, and if so, whether Petitioner established jurisdiction over his constructive demotion claim.
The AJ issued an order to the parties and reopened the appeal record for additional discovery. On November 4, 2015, the AJ issued an initial decision dismissing the appeal. The AJ found that Petitioner did not introduce any evidence, or even allegations of fact, to support his claim that the supervisory position from which he was reassigned was somehow "upgraded," "reclassified," or the subject of "an apparent classification issue" after his reassignment. As such, the AJ found that Petitioner did not show that the Board had jurisdiction over his constructive demotion claim, and dismissed his appeal for lack of jurisdiction, without reaching the issue of timeliness.
Petitioner filed a petition for review, and on April 28, 2016, the MSPB issued a final decision denying the petition, and affirming the initial decision. The MSPB noted that in a constructive demotion appeal, where the jurisdictional and timeliness issues are inextricably intertwined, resolution of the timeliness issue depends on whether the agency subjected the appellant to an appealable constructive action. The MSPB agreed with the AJ that Petitioner did not identify any facts that, if proven, could establish that the Agency reclassified his position, and because the Agency's action relieving him of his supervisory duties is not appealable to the Board, it affirmed the dismissal for lack of jurisdiction.
On August 15, 2016, Petitioner filed a petition for review with the Commission requesting that Agency provide him rights to EEO counseling for a non-mixed complaint.
ANALYSIS AND FINDINGS
EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals 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 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. Therefore, the Commission finds that it has no jurisdiction to review Petitioner's petition. This matter will be considered a "non-mixed" case and processed accordingly. See generally Schmitt v. Dept. of Transportation, EEOC Appeal No. 01902126 (July 9, 1990); Phillips v. Dept. of the Army, EEOC Request No. 05900883 (October 12, 1990); 29 C.F.R. � 1614.302(c)(2)(i) and (ii). In accordance with these principles, Petitioner's request for review is DENIED and Petition No. 0320160061 is hereby administratively closed. MSPB No. DC-0752-14-0284-B-1 is referred to the Agency for further processing as outlined below.
NOTICE TO THE PARTIES
Petitioner is advised by operation of 29 C.F.R. � 1614.302(b), the Agency is required to process the allegations of discrimination pursuant to 29 C.F.R. � 1614.105 et seq. The Agency shall notify Petitioner of the right to contact an EEO counselor within forty five (45) days of receipt of this decision, and to file an EEO complaint, subject to 29 C.F.R � 1614.107. The date on which the Petitioner filed the appeal with the MSPB shall be deemed the date of initial contact with the EEO counselor.
A copy of the notification shall be provided to the Compliance Officer listed below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Petitioner. If the Agency does not comply with the Commission's order, the Petitioner may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Petitioner 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 Petitioner 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 Petitioner 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.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of 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.
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 Petitioner'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
__8/25/16________________
Date
1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website.
2 Under the Agency's Alternative Personnel Management System (APMS), employees are entitled to receive a supervisory pay differential when supervising at least three employees; this differential will be cancelled when an employee's supervisory responsibilities are discontinued. The APMS states that the "granting of a differential is not considered a promotion or a competitive action," and the "cancellation of a supervisory differential does not constitute an adverse action and there is no right of appeal under 5 U.S.C. Chapter 75." 62 Fed. Reg. at 54,609.
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