Clement M.,1 Complainant,v.Matthew Whitaker, Acting Attorney General, Department of Justice, Agency.

Equal Employment Opportunity Commission

Nov 21, 2018

0120171642 (E.E.O.C. Nov. 21, 2018)

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

Clement M.,1
Complainant,

v.

Matthew Whitaker,
Acting Attorney General,
Department of Justice,
Agency.

Appeal No. 0120171642

MSPB No. AT-531D-17-0034-I-1

EEOC Hearing No. 510-2017-00059X

Agency No. EOI-2015-02264

DISMISSAL OF APPEAL

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency’s decision dated March 20, 2017, 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. and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Legal Assistant at the
Agency’s Executive Office for Immigration Review in Orlando, Florida. On October 19, 2015,
Complainant filed a formal complaint alleging that the Agency subjected him to discrimination in
reprisal for prior protected EEO activity arising under Title VII when his management:

1. barred him from participating in overtime activities;

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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2. acted with “threats of a suspension,” which he served for two days, resulting in
sixteen (16) hours of lost pay;2

3. denied him fair and equal treatment based on his “permanent handicap condition”;

4. continued to share his medical condition with other employees; and

5. denied him a within-grade-increase (WIGI) to a step 10.

On November 9, 2015, the Agency informed Complainant that it was accepting his complaint as a
mixed-case, and would complete its investigation within 180 days of the filing date. On August
19, 2016, the Agency completed the investigation, and sent him a copy of the report of
investigation. The Agency informed Complainant that it would issue a final decision within 45
days, and if Complainant was not satisfied with the final decision, he may appeal the decision to
the Merit Systems Protection Board (MSPB), and not the EEOC. On October 12, 2016,
Complainant filed an appeal with the MSPB. On October 28, 2016, the Agency issued the final
decision.

On November 1, 2016, Complainant filed a Request for Dismissal Without Prejudice with the
MSPB. He stated that his appeal contained an error confusing periodic step increases with WIGIs.
On November 3, 2016, the MSPB Administrative Judge (AJ) denied Complainant’s request to
dismiss his appeal without prejudice, and stated that he may file a response to an Order to Show
Cause by November 9, 2016. The MSPB AJ further stated that if Complainant decides to withdraw
his appeal, that it would be “with prejudice,” and that the withdrawal of an appeal is an “act of
finality,” and he would not be able refile the appeal at a later date.

Also on November 3, 2016, Complainant responded with a Request for Reconsideration to Dismiss
the WIGI Appeal. Complainant stated that his appeal was considered a mixed-case due to the WIGI
claim, which was based on his supposition that he was eligible for a WIGI after 12 months, but the
WIGI requirement is 156 weeks. Complainant argued that the dismissal of his appeal with
prejudice should not include allegations that are appealable to the EEOC. On November 7, 2016,
the MSPB AJ denied Complainant’s request for reconsideration.

On November 8, 2016, Complainant filed a Motion to Dismiss the WIGI Appeal; he confirmed
that his withdrawal of the WIGI appeal was voluntary. On November 10, 2016, the MSPB AJ
issued an Initial Decision dismissing Complainant’s appeal as withdrawn. She determined that his
pleading constituted a “clear, unequivocal, and decisive relinquishment of his right to appeal the
Agency’s action.” The MSPB AJ also informed Complainant of his right to request a petition for
review with the MSPB, or request review of the decision with the United States Court of Appeals
for the Federal Circuit.

2 On August 2, 2016, the Agency dismissed this claim because it was already pending before an
EEOC Administrative Judge in a separate complaint.
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On or about November 3, 2016, Complainant requested a hearing before the EEOC. On January
19, 2017, the EEOC AJ issued an Order of Dismissal Without Prejudice. The EEOC AJ noted that
in the Agency’s final decision, Complainant was given appeal rights to the MSPB, and that he may
refile his request for a hearing before the EEOC if a determination is made that some or all of his
claims should be processed by the Commission.

On January 24, 2017, Complainant filed a Motion for Reconsideration, claiming that the EEOC
has jurisdiction because the MSPB dismissed the appealable issue, but “deferred the remaining
issues to the EEOC.” The Agency filed a reply to Complainant’s motion on February 8, 2017.

On February 15, 2017, Complainant filed a Memorandum of Law again asserting that the
Commission has jurisdiction over the allegations that were not actionable to the MSPB. He also
stated that the MSPB AJ only granted the voluntary withdrawal and dismissal of the claim
regarding the denial of the WIGI; and that she previously deferred those allegations that could be
addressed before the EEOC.

On February 24, 2017, the EEOC AJ issued an Order on Complainant’s Motion to
Reconsider/Vacate Order of Dismissal Without Prejudice, noting that Complainant filed an appeal
with the MSPB, which he subsequently withdrew. The EEOC AJ stated that the MSPB did not
“unmix” his case; did not issue a decision on the merits; nor provide Complainant with appeal
rights to the EEOC. The EEOC AJ determined that Complainant had no right to appeal a dismissal
from the MSPB to the Commission. The EEOC AJ further noted that it appeared that Complainant
withdrew his appeal because he incorrectly believed he could “unmix” his own case. The EEOC
AJ found that the process does not provide for Complainant to make those determinations, and
dismissed the matter from the EEO process.

On March 20, 2017, the Agency issued a Final Oder accepting the AJ’s decision that the EEOC
does not have jurisdiction over this matter.

CONTENTIONS ON APPEAL

On appeal, Complainant argues that the EEOC AJ’s decision to dismiss Complainant’s hearing
request was in error due to “misleading information” provided by the Agency. He again claims
that the Commission has jurisdiction over matters that were “deferred” by the MSPB. Complainant
requests that the Commission reverse and remand the EEOC AJ’s decision.

On May 5, 2017, the Agency filed its opposition brief. The Agency asserts that Complainant
irrevocably selected the mixed-case complaint process when he filed his formal complaint on
October 19, 2015. Complainant then filed an appeal with the MSPB, and later withdrew his appeal.
While Complainant alleges that the Commission has jurisdiction over discrimination claims that
he believes were deferred by the MSPB to the EEOC, the Agency argues that Complainant cites
no case law, facts, or evidence to support his proposition. Rather, the Agency states that EEOC
regulations specify that the EEOC will not accept appeals from MSPB dismissals in 29 C.F.R.
§ 1614.303(a).
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Additionally, the Agency states that Complainant alleges that the dismissal of the MSPB appeal
was based on jurisdictional reasons, and accordingly, the EEOC has jurisdiction. However, the
Agency argues that Complainant chose to voluntarily withdraw his MSPB appeal prior to the
MSPB AJ issuing a decision on the merits of the claims, or on jurisdiction. Accordingly, the MSPB
did not dismiss Complainant’s appeal for lack of jurisdiction.

The Agency argues that Complainant improperly attempted to parse out what may be dismissed
from his MSPB appeal to “unmix” his mixed-case complaint. The Agency notes that the EEOC
AJ erroneously included the form letter for standard dismissal orders, leading to Complainant’s
belief that he had the right to appeal the EEOC AJ’s decision to the Office of Federal Operations.
However, the Agency argues that Complainant does not have appeal rights to the Commission on
this matter.

The Agency also asserts that Complainant’s appeal contains materially false statements. For
example, Complainant stated that the MSPB dismissed Complainant’s “other non-appealable
matters for jurisdictional reasons”; dismissed his WIGI appeal; and deferred the remaining matters
to the EEOC. Additionally, the Agency states that Complainant claimed that he filed a civil action
in a district court, and previously alleged that the Agency unlawfully provided information relating
to his income tax returns; and that these claims are untrue.

The Agency requests that the Commission dismiss Complainant’s appeal due to a lack of
jurisdiction under 29 C.F.R. § 1614.405(1); 29 C.F.R. § 1614.302(b), (c)(ii), and (d)(1)(ii); and 29
C.F.R. § 1614.303(a).

ANALYSIS AND FINDINGS

EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals and
complaints on which the MSPB has issued a decision that makes determinations on allegations of
discrimination. 29 C.F.R. § 1614.303 et seq. Here, the MSPB dismissed Complainant’s appeal
because he filed a statement indicating that he was withdrawing his appeal. The Commission has
no jurisdiction over these types of procedural determinations by the MSPB. Because the MSPB’s
decision did not address any matters within the Commission’s jurisdiction, the Commission has
no jurisdiction to review Complainant’s case.

Regarding Complainant’s assertion that the MSPB AJ “deferred” some of his claims to the EEOC,
we find nothing in the record which supports this. Before dismissing Complainant’s appeal, the
MSPB AJ communicated that his withdrawal was an “act of finality.” Additionally, when the
MSPB AJ issued her decision dismissing Complainant’s appeal, she clearly informed him that he
could either request a petition for review from the full board at the MSPB, or file a civil action
with the Court of Appeals. At no point did the MSPB AJ give Complainant any reason to believe
that he could bring his complaint before the Commission.

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CONCLUSION

Accordingly, Complainant's April 4, 2017, appeal is hereby dismissed. See 29 C.F.R.
§ 1614.303(a).

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).

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.
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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. 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 21, 2018
Date