Israel A.,1 Complainant,v.Ray Mabus, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Aug 29, 2016

0120141987 (E.E.O.C. Aug. 29, 2016)

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

Israel A.,1
Complainant,

v.

Ray Mabus,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120141987

Agency No. DON-12-00129-02652

DECISION

Complainant filed an appeal with this Commission from the February 25, 2014 final Agency
decision (FAD) concerning 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. §
621 et seq.

BACKGROUND

On August 13, 2012 (and clarified on October 10, 2012), Complainant filed a formal complaint
alleging that the Agency subjected him to discrimination on the bases of age (55) and in
reprisal for prior protected EEO activity when on March 28, 2012, he received a Notice of
Proposed Removal for Denied Eligibility to Access Non-Critical Sensitive Areas and when he
was forced to retire on July 13, 2012.

In its February 25, 2014 FAD, the Agency found that Complainant had not been subjected to
discrimination or reprisal and provided Complainant with appeal rights to the Merit Systems
Protection Board (MSPB), and not the Commission.

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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ANALYSIS AND FINDINGS

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, but not both. 29 C.F.R.
§1614.302(b). As a general matter, if Complainant is dissatisfied with the Agency's final
decision on a mixed case complaint, Complainant may appeal the matter to the MSPB (not
EEOC) within 30 days of receipt of the Agency's final decision. 29 C.F.R
§1614.302(d)(1)(ii).

Here, the Agency determined that Complainant’s claim was a mixed case complaint and issued
a FAD finding no discrimination or reprisal. The FAD provided Complainant information
about his right to appeal with the MSPB, not the Commission. Complainant however,
improperly filed his appeal with the Commission. Under 29 C.F.R. § 1614.302(d)(1)(ii), the
Commission has no jurisdiction to consider Complainant's appeal.

CONCLUSION

Accordingly, Complainant's appeal is hereby DISMISSED.

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
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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

August 29, 2016
Date