0520180308
08-15-2018
Archie G,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Archie G,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Request No. 0520180308
Appeal No. 0120181169
Hearing No. 570-2016-01366X
Agency No. AREURHPFZ15NOV04503
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120181169 (March 16, 2018). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. � 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c).
After reconsidering the previous decision and the entire record, the Commission finds that the request does not meet the criteria of 29 C.F.R. � 1614.405(c). However, on our own motion, we find that the matter should be reopened to clarify the previous decision.
BACKGROUND
Complainant worked as a Supervisory General Supply Specialist, GS-0346-12. Complainant filed a formal complaint on December 16, 2015, which was subsequently amended, alleging that the Agency discriminated against him to discrimination on the bases of race, national origin, disability, in reprisal for prior protected EEO activity and subjected him to a hostile work environment when:
1. On October 14, 2013, his request for an overseas extension was disapproved by Person A, when he (Person A) stated, "Sign it (non-extension papers) so I can go to dinner."
2. On October 20, 2013, his position was changed from Position Description #257902 and he was reassigned to Position Description #HU422364; an Emergency Essential position with special requirements for deployment, without taking into consideration his identified disability.
3. On February 21, 2014, Person A denied his request for a Reasonable Accommodation.
4. On September 14, 2015, he was informed by letter that a valid Priority Placement Program (PPP) job offer was made which he alleges was manipulated and influenced at Human Resources by Person A and Person B, which Complainant considered an invalid offer.
5. On October 21, 2015, Person A issued him a Proposed Removal from Federal Service for not accepting a valid PPP position.
6. On November 17, 2015, Person A made the comment, "Now we are going to measure them, get closure it is not as big ass your wife thinks it is," while frequenting a public restroom.
7. On November 20, 2015, his previous Senior Rater, Person C, came to pick up parts and had a closed-door meeting with Person A. When Person A came out of the meeting, he said, "I spoke to him, he came by to pick-up parts and that's all you need to be concerned about."
8. On January 5, 2016, he received a Notice of Decision, Removal from Federal Service, with a termination date of February 4, 2016. He claims that Person D based his termination from employment on his non-acceptance of a valid PPP position.
The matter had been investigated and Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). The Agency requested that the AJ dismiss the hearing request asserting that the complaint raised by Complainant involved a mixed case complaint appealable to the Merit Systems Protection Board (MSPB). The AJ granted the Agency's motion. In her decision, the AJ noted that claim (8) contests the Agency's decision to discharge Complainant from federal service and such a claim is appealable to the MSPB. The AJ noted that Complainant raised additional claims that are part of a claim of hostile work environment including the Agency's termination action. In light of the overlapping issues, the AJ noted that adjudicating the MSPB and the EEOC matters could result in conflicting decisions. As such, she dismissed the hearing request providing Complainant the opportunity to raise his claim of termination before the MSPB as it is a mixed case complaint. Further, the AJ noted that the Agency had already completed the investigation as to the claims. Therefore, the AJ directed the Agency to issue a final decision solely on the claim of termination providing Complainant appeal rights to the MSPB. The AJ then instructed the Agency to hold the non-mixed allegations in abeyance pending the MSPB adjudication of the discharge claim.
Contrary to the AJ's remand decision, the Agency issued a final decision on all the claims alleged by Complainant. The January 18, 2018 final decision held that the Agency did not subject Complainant to discrimination and provided him with appeal rights to the MSPB. Complainant filed an appeal with the Commission.
In the previous decision, the Commission dismissed the matter finding that the FAD provided Complainant with appeal rights to the MSPB, not the EEOC. As such, the decision dismissed the matter for lack of jurisdiction. The decision noted that if the MSPB dismissed the appeal for lack of jurisdiction, the Agency would be required to recommence the processing of the now non-mixed case where processing ceased.
On request for reconsideration, Complainant alleged that the previous decision erred in failing to remand the complaint as a whole back to the AJ for a hearing on the mixed and non-mixed claims. We find that Complainant is not correct in asserting that the AJ erred in her dismissal of the hearing. The AJ's dismissal and decision directing the Agency to issue a final decision on the termination claim alone and to hold the remaining non-mixed claims were appropriate. We note that the AJ properly cited regulations and EEOC guidance regarding the processing of mixed and non-mixed complaints.
However, we find that the previous failed to adequately review the Agency's final decision. We determined that the AJ's dismissal was appropriate. But a closer review of the Agency's final decision shows that the Agency did not properly implement the AJ's orders. The AJ dismissed the hearing request for the Agency to issue a final order on only the termination claim and hold the non-mixed claims in abeyance pending the MSPB determination. The Agency issued a final decision on all the claims, not just the mixed claim regarding the termination action. The Agency also failed to hold the non-mixed claims in abeyance as directed by the AJ. The previous decision failed to take notice of the Agency's failure to comply with the AJ's dismissal.
As such, we shall order the Agency to take action in compliance with the dismissal order issued by the AJ. First, the Agency shall vacate the January 18, 2018 final decision. The Agency will issue Complainant a new final decision only addressing its termination action. The new final decision will provide Complainant with appeal rights to the MSPB, not the EEOC. Further, the Agency shall hold the remaining non-mixed claims in abeyance pending the MSPB appeal.
CONCLUSION
After reconsidering the previous decision and the entire record, we find that Complainant's request fails to meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to deny the request. However, on our own motion we have reopened the decision in Appeal No. 0120181169. The decision of the Commission in Appeal No. 0120181169 is modified and the Agency's final action/decision is VACATED. The Agency shall take action in compliance with the ORDER below. There is no further right of administrative appeal on the decision of the Commission on a Request to Reconsider.
ORDER (E0618)
The Agency is ordered:
1. To vacate the final decision dated January 18, 2018. Within 15 calendar days, the Agency shall issue Complainant a new final order addressing only the termination action and providing Complainant with appeal rights to the MSPB, not the EEOC.
2. To hold the remaining claims in abeyance pending the MSPB decision. If the MSPB denies jurisdiction on the termination claim, then the claims will be consolidated and returned to the Washington Field Office Hearings Unit for assignment to an EEOC AJ. If the MSPB issues a decision on the termination claim, only the remaining claims will be forwarded to the Washington Field Office Hearings Unit for assignment to an EEOC AJ.
As provided in the statement entitled "Implementation of the Commission's Decision," the Agency must send to the Compliance Officer: 1) a copy of the Agency's final decision on the termination action and 2) a copy of the Agency's notice that the remaining claims will be held in abeyance pending the MSPB's decision.
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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (Q0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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.
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 15, 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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