Glenna O.,1 Complainant,v.Ashton B. Carter, Secretary, Department of Defense, Agency.

Equal Employment Opportunity Commission

Apr 14, 2016

0720150017 (E.E.O.C. Apr. 14, 2016)

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

Glenna O.,1
Complainant,

v.

Ashton B. Carter,
Secretary,
Department of Defense,
Agency.

Appeal No. 0720150017
Hearing No. 570-2012-00148X
Agency No. 2010PFPA004

DECISION

Following its December 19, 2014 final order, the Agency filed a timely appeal. On appeal,
the Agency requests that the Commission affirm its rejection of a U.S. Equal Employment
Opportunity Commission (EEOC or Commission) Administrative Judge's (AJ) dismissal of
Complainant’s EEO complaint, without prejudice. The Agency also requests that the
Commission remand the complaint back to the AJ for a hearing. For the following reasons,
the Commission VACATES the AJ’s decision.

The issue to be decided herein is whether the AJ erred in his decision finding that a
demotion/loss of pay claim was inextricably intertwined with the harassment/hostile work
environment claim raised in the pending complaint turning the entire complaint into a mixed
case complaint and out of the EEOC’s jurisdiction.

Records show that on or about January 26, 2011, Complainant filed a formal EEO complaint
alleging that she was subjected to harassment/hostile work environment on the basis of her
disability (exercise-induced anaphylaxis) when she was subjected to several incidents, including
the issuance of a Notice of Determination Letter indicating that she was not medically qualified
to perform the duties of Pentagon Force Protection Agency (PFPA) Police Officer (AD-083-
06) located in Arlington, Virginia. The Agency informed Complainant that it would make
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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every effort to assist her in finding alternative employment. Ultimately, the Agency reassigned
Complainant into the position of PFPA Physical Security Specialist (GS-080-07) located in
Arlington, Virginia.2

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing but the
AJ denied the hearing request on the grounds that Complainant’s demotion/loss of pay claim
turned the matter into a mixed case complaint. Complainant has not filed an appeal from this
decision.

Specifically, according to the AJ, Complainant first raised a demotion/loss of pay claim at the
pre-hearing conference. The AJ noted that Complainant did not file a separate EEO complaint
regarding her reassignment; did not amend her original EEO complaint during the Agency
investigation; or request that the AJ amend the EEO complaint when her case file was
forwarded to the Equal Employment Opportunity Commission. However, the AJ concluded
that Complainant raised the issue of the salary reduction with the Agency EEO investigator
during the Agency's investigation of her complaint in August 2011. Accordingly, the AJ
found that the demotion/loss of pay allegation was an issue properly raised by Complainant.
The AJ, therefore, concluded that Complainant's reduction in salary caused by her
reassignment to the position of Physical Security Specialist is an issue that is appealable to the
Merits Systems Protection Board (MSPB) and that the issue is inextricably linked to
Complainant's overall Harassment Claim. Therefore, the AJ concluded that the instant matter
is a mixed case complaint that is appealable only to the MSPB and not the EEOC. The AJ
remanded the complaint to the Agency, for new mixed case complaint rights and the option to
elect a Final Agency Decision or an Appeal to the MSPB.

On appeal, the Agency asks the EEOC to vacate the AJ’s Order of Dismissal dated November
13, 2014, and remand this matter to an administrative judge for resolution of the issues. The
Agency argues that Complainant did not raise the issue of demotion/loss of pay until the pre-
hearing conference which makes the allegation untimely. The Agency asserts on appeal that
Complainant could not possibly have raised such allegations during the investigation because
she did not know that her pay was improperly set when she was reassigned to the position of
Physical Security Specialist but only first learned of such fact in October 2011 (after the Report
of Investigation was issued).

2 Complainant initially asserted that she was discriminated against and subjected to a hostile
work environment based on her physical disability (exercise-induced anaphylaxis) when: (1)
from December 3, 2009, to present, she has been on light duty status; (2) on August 27, 2010,
she received a Notice of Determination indicating that she was deemed not medically qualified
to perform the duties of her position; and (3) on/about October 14, 2010, she was informed
that her request for a transfer to the Integrated Emergency Operations Center (IEOC) (dated
September 30, 2010), was denied (herein referred to as Harassment Claim).

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As the AJ notes in his decision, Complainant’s affidavit dated August 26, 2011, states the
following:

Yes, prior to the start date of my new position as a Physical
Security Specialist I was told and reassured that I would receive
my regular promotion and salary increase and that I would not
experience any problems in this regard. However, following my
transfer I did not receive all salary and promotion increases. I
complained to WHS and PFPA Human Resources and was told
that someone gave the wrong information and that the Agency did
not give me a step increase, and that I would not receive the full
increase that I would have received because I was no longer PPD.

We find this statement sufficient to support the AJ’s decision to include the demotion/loss of
pay allegation. Even assuming, arguendo, that Complainant was raising a claim that was not
yet ripe as the Agency seems to suggest, she clearly raised it again at the pre-hearing
conference when the issue was undisputedly ripe. While the AJ did not explicitly grant an
amendment, his decision clearly supports that conclusion.3 We note that the AJ has broad
discretion in the conduct of a hearing under EEOC regulations. See 29 C.F.R. §§ 1614.106(d)
and 109.

However, we disagree with the AJ in concluding that the demotion/loss of pay claim is
inextricably intertwined with the Harassment Claim initially raised by Complainant. As a
general rule, issues not appealable to the MSPB should be severed and processed separately
from those issues that are appealable to the MSPB. See Complainant v. Inter-American
Foundation, EEOC Appeal No. 0120132968 (Jan. 8, 2014) (wherein the Commission
essentially overturned the inextricably intertwined doctrine).

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we VACATE the AJ’s decision, REMAND the claims for
further processing in accordance with the Order herein.

ORDER

Within fifteen (15) days from the date this decision becomes final:

(1) The Agency shall provide Complainant with written notification of her right of election
regarding the demotion/loss of pay claim. Specifically, the Agency must notify
3 After requesting a hearing, a Complainant may motion the AJ to amend a complaint to
include issues or claims like or related to those raised in the complaint. 29 C.F.R. §
1614.106(d).

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Complainant in writing of her right to file a mixed case complaint or appeal regarding
her claims in accordance with this decision and pursuant to 29 C.F .R. § l614.302(b);
and

(2) The Agency shall submit to the Hearings Unit of the EEOC’s Washington Field Office
the request for a hearing and a copy of the complaint file to the EEOC Hearings Unit
within 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 herein that
the request for a hearing and the complaint file has been transmitted to the Hearings
Unit. Thereafter, the Administrative Judge shall issue a decision on the Harrassment
Claim 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.

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 tends to
establish that:

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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 (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.

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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

April 14, 2016
Date