0120162788
11-10-2016
Deandre Y.,1 Complainant, v. Eric K. Fanning, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Deandre Y.,1
Complainant,
v.
Eric K. Fanning,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120162788
Agency No. ARCENASH16MAY02114
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated August 1, 2016, dismissing his complaint of unlawful employment discrimination alleging a violation of 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 Lock and Dam Mechanic at the Agency's Corps of Engineers facility in Grand Rivers, Kentucky.
On July 14, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of disability when he was given notices of proposed removal on March 22, 2016, and April 18, 2016. The March 22, 2016 proposal was rescinded. The April 18, 2016 proposal was upheld and Complainant was removed from his position, effective June 23, 2016.
Complainant appealed his removal to the Merit Systems Protection Board (MSPB), Docket No. AT-0752-16-0670-I-1, before he filed his formal EEO complaint.
The Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(4), for filing with the MSPB on his removal before he filed his formal complaint.
The instant appeal followed. In his appeal, Complainant asserts that the proposal to remove him was not brought before the MSPB.
ANALYSIS AND FINDINGS
The Agency's dismissal of Complainant's mixed case complaint, pursuant to 29 C.F.R. � 1614.107(a)(4), was proper. A mixed case complaint is a complaint of employment discrimination filed with a federal agency, related to or stemming from an action that can be appealed to the MSPB. 29 C.F.R. � 1614.302(a)(1). An aggrieved person may initially file a mixed case complaint with an agency or may file a mixed case appeal directly with the MSPB, pursuant to 5 C.F.R. � 1201.151, but not both. 29 C.F.R. � 1614.302(b). 29 C.F.R. � 1614.107(a)(4) provides that an agency shall dismiss a complaint where the complainant has raised the matter in an appeal to the MSPB.
Here, the record establishes that Complainant's claim related to his removal was an action that could be appealed to the MSPB, and Complainant did so prior to filing his EEO complaint. As such, he made a valid election to have his claim adjudicated before the MSPB.
With regard to his argument that the proposal to remove him was not before the MSPB, we note he is technically correct. However, 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). Thus, the proposed action would merge with the final action (Complainant's removal), which is before the MSPB. Moreover, to the extent that Complainant is alleging that the March 22, 2016, proposed action was not raised with the MSPB, we note that under 29 C.F.R. � 1614.107(a)(5), an Agency may dismiss a claim that alleges a proposal to take a personnel action or other preliminary step to taking a personnel action.
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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 (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. 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 10, 2016
__________________
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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