0120143089
10-29-2015
Darius G.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Darius G.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120143089
Hearing No. 560-2014-00157X
Agency No. 200J06362012104343
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated June 12, 2014, dismissing his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Motor Vehicle Operator at the Agency's facility in Omaha Nebraska.
On August 6, 2012, Complainant contacted the EEO Counselor alleging discrimination. When the matter could not be resolved informally, Complainant was issued a Notice of Right to File a Formal Complaint. On November 14, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Black), disability, and reprisal when Complainant was subjected to harassment and disparate treatment. In support of his claim, Complainant alleged that the following events occurred:
1. On March 31, 2011, Complainant was detailed from his position as a Motor Vehicle Operator and assigned various other duties.
2. From November 2011 through July 2012 (specific dates not provided), Complainant requested a transfer or reassignment, however his requests were ignored.
3. In June 2012, Complainant learned that a White co-worker (CW) was returned to his position as a Motor Vehicle Operator, and he was not.
4. On July 24, 2012, the Associate Director stated to Complainant, "Regardless of what happened, you still have to go through the procedure like the rest of the employees."
5. On July 24, 2012, Complainant was placed on authorized absence (AA) until July 30, 2012. On July 26, 2012, he was advised the AA was extended until August 31, 2012, and further advised the AA was extended until September 28, 2012.
6. On July 26, 2012, Complainant was issued a Protection Order for incidents that occurred at the medical center.
7. On August 29, 2012, Complainant was issued a proposed removal letter.
8. On September 20, 2012, Complainant received noticed that he was not to enter the medical center grounds without first obtaining approval from the Chief, Human Resources Management Service.
9. On September 28, 2012, Complainant was terminated from his position as a Motor Vehicle Operator.
On December 21, 2012, the Agency issued its Notice of Acceptance of a mixed case complaint with appeal rights to the Merit Systems Protection Board (MSPB). The Agency dismissed events (1) and (2) to the extent they involved discrete acts, pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. However, the Agency accepted these events to the extent Complainant alleged he had been subjected to ongoing harassment. The Agency investigated the complaint.
Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). The parties and the AJ engaged in a telephonic prehearing conference. At that time, the Agency asserted that the matter should not be before the AJ and Complainant should have been given rights to appeal the matter to the MSPB as a mixed case.
On April 18, 2014, the AJ issued a decision dismissing the hearing. In the decision, the AJ also dismissed claim (1) as untimely raised pursuant to 29 C.F.R. � 1614.107(a)(2). The AJ then instructed the Agency to issue a final decision on allegations (2) - (9), providing Complainant appeal rights to the MSPB.
The Agency issued its final decision on June 12, 2014. The Agency first dismissed allegation (2), pursuant to 29 C.F.R. � 1614.107(a)(1), asserting Complainant had raised the same matter in another EEO complaint. The Agency went on to address the merits of the termination claim (allegation 9) only.2 The Agency found no discrimination had occurred with regard to the termination, and provided Complainant with appeal rights to MSPB.
On July 9, 2014, Complainant filed an appeal with the MSPB. The MSPB Administrative Judge issued his decision on April 24, 2015, affirmed the Agency's termination action addressing Complainant's affirmative defenses of discrimination based on disability, race and reprisal. Complainant appealed the decision to the full Board, which sustained the removal action in its Final Order dated September 21, 2015.
On August 29, 2014, Complainant also filed the instant appeal with us regarding the EEOC AJ's dismissal of event (1) pursuant to 29 C.F.R. � 1614.107(a)(2). Complainant argued that he had been in contact with the EEO Counselor in April 2011, but was not permitted to file a complaint. As such, the date of contact was not August 2012, but April 2011. Complainant provided documents showing that he filled out an EEO contact form on May 19, 2011, coinciding with meeting between management, the EEO Counselor and himself to resolve the issue raised in allegation (1).
The Agency responded to the appeal. The Agency argued that the matter was not within the jurisdiction of the EEOC for Complainant was provided with appeal rights to the MSPB.3 Furthermore, the Agency argued that Complainant's appeal was untimely. The Agency noted that the final decision was issued on June 12, 2014, and Complainant filed his appeal well after 30 days from when he received the decision. As such, the Agency argued that the Commission should dismissal the appeal.
ANALYSIS AND FINDINGS
Timeliness of Appeal
We note that the Agency asserted that Complainant was untimely in filing his appeal. We note that the Agency failed to provide Complainant with appeal rights to the Commission regarding the dismissal of allegation (2). Therefore, it was the Agency's failure to provide Complainant with the appropriate appeal rights that caused the delay in Complainant filing an appeal. The Commission has previously held that an agency may not dismiss a complaint if the Agency's actions were the cause of the delay. See Wilkinson v. United States Postal Service, EEOC Request No. 05950205 (March 26, 1996). See also, Elijah v. Department of the Army, EEOC Request No. 05950632 (March 29, 1996) (if agency officials misled complainant into waiting to initiate EEO counseling, agency must extend time limit for contacting EEO Counselor). Therefore, we decline to dismiss the appeal as untimely.
Jurisdiction
The Agency argued that the matter is not properly before the Commission. The Agency noted that its final decision addressed the termination action and provided Complainant with appeal rights to the MSPB, not EEOC. We agree that allegations (7) and (9) involve the issuance of the proposed termination and the Agency's termination action which are within the jurisdiction of the MSPB.4 Complainant filed an appeal with the MSPB. The MSPB has upheld the Agency's termination action. See MSPB Appeal No. DE-0752-14-0446-I-1, Initial Decision (April 24, 2015), removal sustained by Final Order (Sept. 21, 2015).
In its June 2014 final decision, the Agency also dismissed allegation (2) for stating the same claim in a prior EEO complaint, pursuant to EEOC Regulation 29 C.F.R. � 1614.107(a)(1). The AJ dismissed allegation (1), pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. Finally, the Agency noted that the remaining non-mixed events were still pending before the AJ. Where an agency has not accepted a complaint for processing, that is, has disposed of the complaint on procedural grounds, the resulting final agency decision is appealable to the Commission. 29 C.F.R. � 1614.302(c)(1); see Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 4(II)(B)(2). (Aug. 5, 2015); see also, Abegglen v. Dep't. of Energy, EEOC Appeal No. 01966055 (Oct. 9, 1998). As such, we find that the instant matter is properly before the Commission.
Dismissal of Allegation (1)
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. On appeal, Complainant indicated that he contacted the EEO Counselor in April 2011. Further, he noted that the EEO Office coordinated an attempt to resolve the matter in a meeting between Complainant and management in May 2011. At that time, Complainant filled out an EEO Counselor contact form dated May 19, 2011. Complainant provided the contact form to support his assertions that he made contact within 45 calendar days of the March 31, 2011, reassignment. The Agency failed to respond to Complainant's arguments. Upon review, we find that Complainant has asserted that he made timely raised event (1). As such, we determine that the dismissal of allegation (1) was not appropriate.
Dismissal of Allegation (2)
In its final decision, the Agency dismissed allegation (2) stating that Complainant had previously alleged the matter in a prior EEO complaint. The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that the agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the Agency or Commission. The Agency failed to provide a copy of the previous EEO complaint. Thus, the Agency has failed to substantiate the bases for its final decision. See Marshall v. Dep't of the Navy, EEOC Request No. 05910685 (Sept. 6, 1991). Therefore, we find the dismissal of allegation (2) was not appropriate.
Allegations (1) - (6) and (8)
We note that the Agency indicated, in its final decision dated June 12, 2014, that the "non-mixed" allegations were still pending before the AJ. This is not consistent with the AJ's dismissal decision dated April 18, 2014. Thus, allegations (1) - (6) and (8) were not considered by the MSPB and should be considered "non-mixed" matters and processed accordingly. See generally Schmitt v. Dep't of Transp., EEOC Appeal No. 01902126 (July 9, 1990); Phillips v. Dep't of the Army, EEOC Request No. 05900883 (Oct. 12, 1990); 29 C.F.R. � 1614.302(c)(2)(i) and (ii). The Agency is required to process the allegation of discrimination as a "non-mixed" matter pursuant to 29 C.F.R. � 1614.109 et seq. The matter should be remanded back to the point where processing ceased. Therefore, the Agency should forward a request for a hearing on these allegations the appropriate EEOC Hearings Unit.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND events (1) - (6) and (8) for further processing in accordance with the ORDER below.
ORDER
Within 15 days of the date this decision becomes final, the Agency shall request that the EEOC's St. Louis District Office schedule a hearing. The Agency is directed to also submit a copy of the complaint files to the Hearings Unit of the St. Louis District Office within 15 days of the date this decisions becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the request and complaint files have 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 et seq., 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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, P.O. Box 77960, Washington, DC 20013. 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 (T0610)
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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. 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
October 29, 2015
__________________
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.
2 In a footnote, the Agency stated that the only portion of the complaint being decided was the termination action because "Complainant requested a hearing on the non-mixed portion of his complaint."
3 Complainant indicated that he raised the matter with the MSBP Administrative Judge, who denied Complainant's motion to include allegation (1) with his MSPB appeal.
4 We note that when a complaint is filed on a proposed action and the Agency subsequently proceeds with the action, the action is considered to have merged with the proposal. See Siegel v. Dep't of Veterans Affairs, EEOC Request No. 05960568 (Oct. 10, 1997); Charles v. Dep't of the Treasury, EEOC Request No. 05910190 (Feb. 25, 1991). Therefore, events (7) and (9) merged into one event, namely the termination action.
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