Kenneth W.,1 Complainant,v.Elaine L. Chao, Secretary, Department of Transportation (Federal Highway Administration), Agency.

Equal Employment Opportunity Commission

Sep 11, 2020

2020003338 (E.E.O.C. Sep. 11, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kenneth W.,1 Complainant, v. Elaine L. Chao, Secretary, Department of Transportation (Federal Highway Administration), Agency. Appeal No. 2020003338 Hearing No. 410-2020-00093X Agency Nos. 2019-28253-FHWA-03, 2019-28530-FHWA-03 DISMISSAL OF APPEAL On May 5, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 4, 2020, final decision concerning his equal employment opportunity (EEO) complaint alleging 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, Complainant's appeal is DISMISSED due to lack of jurisdiction. 29 C.F.R. § 1614.302(d)(1)(ii). ISSUE PRESENTED Whether Complainant erred in filing the instant appeal of a mixed-case complaint where the Agency issued a final decision with appeal rights to the Merit Systems Protection Board (MSPB), not EEOC. 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. 2020003338 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Pavement and Materials Engineer at the Agency’s facility in Baltimore, Maryland. On March 11, 20192, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Iranian American), religion (Muslim), disability (mental), age (58) and reprisal for prior protected EEO activity under when: 1. on October 31, 2018, Complainant was placed on Leave Without Pay from October 2, 2018 to October 5, 2018, and informed that the medical information he provided was determined inadequate; 2. on January 30, 2019, he received a removal proposal; 3. since approximately 2017, management did not grant his reasonable accommodation requests, including medical leave and a change to his work environment; and, 4. on July 9, 2019, he was terminated On October 28, 2019, Complainant submitted a request for a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In error, the Agency issued a Final Agency Decision (FAD) on May 4, 2020, and Complainant filed the instant appeal. On June 8, 2020, the Agency noted its error and rescinded the FAD, and issued a new FAD on claim 4 only3. In a cover letter issued with the new FAD, the Agency notified Complainant of his appeal rights to the Merit Systems Protection Board (MSPB) or an appropriate U.S. District Court, and not with EEOC. CONTENTIONS ON APPEAL Complainant did not submit a statement on appeal. The Agency asserted that the appeal must be dismissed because it was premature as the Commission lacks jurisdiction over Complainant’s claims. The Agency noted that it had issued the May 4, 2020 FAD in error, and subsequently rescinded the FAD. The rescission letter issued with the new FAD reflected that, with the exception of the termination issue addressed in the new FAD, the complaints were consolidated before the Equal Employment Opportunity Commission Administrative Judge (AJ). The Agency’s new FAD addressed the termination claim and noted that it had provided Complainant with appeal rights to the MSPB, not the EEOC. The Agency requested that the appeal be dismissed. 2 On October 15, 2019, Complainant filed a second complaint which was later consolidated with his first. 3 The rescission letter informed Complainant that the rest of the claims would be adjudicated by a hearing pursuant to 29 C.F.R. §1614.109(a). 2020003338 3 ANALYSIS AND FINDINGS As an initial matter, we note that claims 1 - 3 are pending before an EEOC AJ under Hearing No. 410-2020-00093X. As such, the Agency properly rescinded its FAD regarding these claims. Therefore, the appeal of these claims is dismissed as premature. We now turn to the Agency’s FAD regarding the termination claim. 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 Merits Systems Protection Board (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. The new final decision addressing the termination claim instructed Complainant to file an appeal with the MSPB, not the EEOC. Upon review, Complainant's appeal is DISMISSED due to lack of jurisdiction4. 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 4 The Commission's regulations require that should the MSPB dismiss the appeal for lack of jurisdiction, the Agency is required to recommence processing the matter as a non- mixed case complaint. 29 C.F.R. § 1614.302(c)(2)(ii). 2020003338 4 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. 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 September 11, 2020 Date