Chasity C.,1 Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Headquarters), Agency.

Equal Employment Opportunity Commission

Nov 4, 2016

0120140557 (E.E.O.C. Nov. 4, 2016)

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

Chasity C.,1
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security
(Headquarters),
Agency.

Appeal No. 0120140557

Hearing No. 520-2013-003254X

Agency No. HS-HQ-00372-2011

DECISION

On November 26, 2013, Complainant filed an appeal from the Agency’s October 30, 2013,
final order concerning her equal employment opportunity (EEO) complaint alleging
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. The Commission deems the appeal
timely and accepts it for review. For the following reasons, the Commission VACATES the
Agency’s final order and REMANDS the matter for a hearing in accordance with 29 C.F.R.
§ 1614.109.

ISSUE PRESENTED

Whether the Agency erred when, in issuing its final decision on March 7, 2012, finding no
discrimination, it failed to separate Complainant’s non-mixed-case allegations from her mixed-
case allegations and notify Complainant of her right to request a hearing before an EEOC
Administrative Judge (AJ) on her non-mixed-case allegations.

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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BACKGROUND

Complainant worked as a Veterinary Medical Officer at the Plum Island Animal Disease
Center in Greenport, New York. On March 2, 2011, Complainant filed an EEO complaint in
which she alleged that her first-line and second-line supervisors subjected her to discriminatory
harassment because of her sex (female) and perceived disability (traumatic brain injury)
between April 2010 and February 2011. She identified the following eleven incidents as
comprising her claim:

1. On unspecified dates, Complainant’s first and second line supervisors told her that she
was “getting in the way of research” when she attempted to take small corrective
measures to be in compliance with research regulations.

2. On unspecified dates, management questioned Complainant’s clinical judgment,
verbally reprimanded her, and undermined her authority.

3. On an unspecified date, Complainant’s first-line supervisor blamed her for
organizational deficiencies reported by the Animal Care Committee in their bi-annual
inspection.

4. On unspecified dates, Complainant’s direct report went directly to Complainant’s first-
line supervisor regarding work-related issues when the direct report did not agree with
Complainant, and the first-line supervisor did nothing to discourage the direct report’s
actions.

5. In April 2010, Complainant’s first-line supervisor told her that Complainant was
interfering with research and that Complainant had no jurisdiction when the supervisor
allowed a male investigator to violate published research policy by beginning a study
before the prescribed seven-day acclimation period ended.

6. On October 8, 2010, Complainant’s first-line supervisor forced her to provide a male
investigator with one of Complainant’s research animals, which Complainant needed
for her study.

7. On December 28, 2010, Complainant learned that her first-line supervisor cancelled a
university fellowship program because, Complainant believed, all the applicants were
female.

8. On unspecified dates, management told Complainant that she was inflexible in her
decision-making.

9. On approximately January 14, 2011, management called Complainant into a meeting
with a Human Resources representative and told her that she would be issued a
“contract of behavior” on an unspecified date.
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10. After approximately January 14, 2011, management removed Complainant from her
supervisory role, denied her request for additional supervisory training, and led her to
believe that she should not be acting in a supervisory capacity.

11. On February 4, 2011, management prohibited Complainant from entering the
Biocontainment area and required her to work from her desk because, “[Complainant
is] mentally unstable” and “might forget to take a shower.”

On March 28, 2011, the Agency notified Complainant that it had accepted all eleven
allegations for processing, and that she would be given notice of her right to request a final
Agency decision or a hearing before an EEOC AJ. Investigative Report (IR) 53-55. On
March 4, however, Complainant amended her complaint to include the following additional
allegations:

12. On March 3, 2011, management issued Complainant a letter suspending Complainant’s
access to classified information and falsely implying that she has a traumatic brain
injury or other neurological or psychological disability.

13. On March 3, 2011, management issued Complainant a Notice of Proposed Indefinite
Suspension, without pay, pending final adjudication of her eligibility for access to
classified information.

14. On March 3, 2011, management issued Complainant a Notice of Administrative Leave,
with pay, effective immediately.

Complainant added reprisal as a basis in connection with allegations (12) through (14). In a
second acceptance letter dated March 29, 2011, the Agency notified Complainant that it would
accept these three additional allegations as an amendment to her original complaint. IR 57-58.
Again, the Agency notified Complainant of her right to request a hearing before an EEOC AJ.
On April 12, 2011, Complainant filed a second request to amend her complaint, to which she
added the following additional allegation:

15. On March 23, 2011, management issued Complainant a Notice of Indefinite
Suspension, without pay, effective April 3, 2011.

In a third acceptance letter dated May 13, 2011, the Agency notified Complainant that this
amendment would be considered a mixed-case complaint based on disability discrimination and
reprisal that would encompass allegations (12) and (15). In that notice, the Agency indicated
that at the conclusion of the investigation, it would issue a final decision on the matter and
would notify Complainant of her right to appeal that decision to the Merit Systems Protection
Board (MSPB). The notice further provided that if Complainant believed that the accepted
claim had not been correctly identified, she should contact the EEO office, in writing, within
seven days of receiving the notice. IR 60-61.
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On July 6, 2011, Complainant requested that her complaint be amended a fourth time to
include the following incident:

16. On approximately July 6, 2011, Complainant’s supervisor provided Complainant a
negative reference in response to an inquiry from a prospective employer.

Supplemental Investigative Report (SIR) 1-3. In a fourth acceptance letter dated September 7,
2011, the Agency notified Complainant that it would accept allegation (16), and that a
supplemental investigation would be completed. This notice did not include any references to
any of Complainant’s post-investigation rights before the MSPB or the EEOC. SIR 4.

The Agency conducted its initial investigation between May 3 and July 22, 2011, and its
supplemental investigation between September 19 and October 28, 2011. On December 16,
2011, Complainant received both investigative reports and a notification that the Agency would
subsequently issue a final decision. On December 29, 2011, Complainant objected to the
designation of her complaint as a mixed-case complaint and requested a hearing before an
EEOC AJ, filed as EEOC Hearing No. 520-2013-00324X.

On March 7, 2012, the Agency issued a final decision dated February 29, 2012, in which it
found no discrimination on all sixteen allegations and notified Complainant of her right to
appeal the Agency’s final decision to the MSPB. The notice of appeal rights specifically stated
that she could not file an appeal with the EEOC. Complainant filed an appeal with the MSPB
on April 6, 2012, claiming that the final decision was improperly issued and that the Agency
transformed her complaint into a mixed-case complaint against her will.

On August 6, 2013, in accordance with a joint motion filed by the parties, the MSPB AJ
dismissed Complainant’s appeal without prejudice until the EEOC AJ had determined whether
or not he had the authority to hear the matter. On August 9, 2013, the Agency filed a motion
to dismiss Complainant’s request for a hearing before the EEOC. On September 27, 2013, the
EEOC AJ granted that Agency’s motion, finding that the Commission had no authority to hear
the case due to the existence of the final Agency decision that the Agency had issued on March
7, 2012.

On October 17, 2013, Complainant re-filed her appeal of the indefinite suspension with the
MSPB. On October 30, 2013, the Agency issued a final order dated October 28, 2013, in
which it fully implemented the EEOC AJ’s decision granting its motion to dismiss
Complainant’s hearing request. In its order, the Agency noted the EEOC AJ’s
acknowledgement that he had no authority to review a final Agency action, that the
Complainant was given her MSPB appeal rights, and that Complainant had resubmitted her
appeal of the March 7, 2012 final decision to the MSPB.

On November 26, 2013, Complainant filed the instant appeal. On December 26, 2013, the
MSPB again dismissed Complainant’s appeal of the indefinite suspension without prejudice.
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The MSPB AJ instructed Complainant to re-file her appeal with the MSPB following the
Commission’s issuance of the instant appellate decision.

ANALYSIS AND FINDINGS

The fundamental problem in this case is the Agency’s failure to separate Complainant’s mixed
case allegations from her non-mixed-case allegations when it issued its March 7, 2012 final
decision on the merits. In situations involving complaints with mixed and non-mixed
allegations, the Commission usually waits for the MSPB to decide whether to accept an
allegation, and only if the Board declines to accept jurisdiction will the EEOC consider the
matter. See EEO Management Directive 110, Chapt. 4, §B(2)(b) (August 5, 2015) (If the
MSPB Administrative Judge finds that the MSPB does not have jurisdiction over the claim, the
Agency shall recommence processing of the mixed case complaint as a non-mixed-case EEO
complaint). Here, however, the MSPB deferred to the EEOC on this question, not once but
twice, most recently in December 2013.

The MSPB generally does not have jurisdiction over non-appealable matters, even if they are
connected with appealable matters. Complainant v. Inter-American Foundation, EEOC Appeal
No. 0120132968 (January 8, 2014). The only exception is the situation in which a non-
appealable matter is a proposed action that becomes final, in which case the proposal is said to
“merge” with the final action. Wilson v. Dept. of Veterans Affairs, EEOC Appeal No.
0120122103 (Sept. 10, 2012). In this case, of the sixteen allegations comprising
Complainant’s claim, the only one appealable to the MSPB is allegation (15), the indefinite
suspension. The proposed suspension at issue in Allegation (13) merges into the actual
suspension referenced in allegation (15). None of the other allegations are appealable to the
MSPB.

In the first two acceptance letters, dated March 28 and March 29, 2011, the Agency clearly
stated that at the conclusion of the investigation, Complainant would be informed of her right
to request a hearing before the EEOC on allegations (1) through (14).2 The third acceptance
letter, dated May 13, 2011, indicated that Complainant would be given MSPB appeal rights for
allegations (12) and (15).3 Yet, inexplicably, the Agency issued a final decision in March 2012
that encompassed all sixteen allegations, both mixed and non-mixed. In so doing, the Agency
prematurely cut off the processing of allegations (1) through (12), (14), and (16). What it
should have done was to bifurcate the claim, notify Complainant of her right to request a
hearing with an EEOC AJ on all of the non-mixed allegations, and issue a final decision with
MSPB appeal rights only with respect to the indefinite suspension at issue in allegation (15).

2 Because allegation (15) had not yet been accepted by the Agency, as of March 29, 2013,
allegation (13) still concerned an unmerged proposal to suspend and therefore was not
appealable to the MSPB at that time.

3 Including allegation (12) in the May 13th acceptance letter created additional confusion, since
allegation (12) concerned a non-appealable matter.
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Because the MSPB will not entertain non-appealable matters, allegations (1) through (12), (14),
and (16) must be processed in accordance with 29 C.F.R. § 1614.109. We will enter an order
directing the Agency to do so.

CONCLUSION

Based on a careful review of the record including Complainant’s contentions on appeal, the
Agency’s response, and arguments and evidence not specifically discussed in this decision, the
Commission VACATES both the Agency’s Final Decision dated February 29, 2012, and its
Final Order dated October 28, 2013, and REMANDS Complaint No. HS-HQ-00372-2011 to
the Agency to request assignment of an EEOC AJ in accordance with this decision and the
Order below. The scope of the hearing request shall be limited to allegations (1) through (12),
(14), and (16) enumerated above.

ORDER

The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit
within fifteen (15) calendar days of the date this decision becomes final. The Agency shall
provide written notification to the Compliance Officer at the address set forth below that the
complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge
shall issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109, and the
Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110.

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 Complainant. 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.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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 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).

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
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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

November 4, 2016
Date