0120171311 0120171312
04-27-2018
Mana H.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Mana H.,1
Complainant,
v.
Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.
Appeal Nos. 0120171311, 0120171312
Agency No. DON-16-64267-00691, DON-16-64267-01765
DECISION
On February 25, 2017, Complainant filed appeals with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's January 26, 2017, final decisions concerning her equal employment opportunity (EEO) complaints 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, the Commission VACATES the Agency's final decisions and REMANDS the complaints to the EEOC Los Angeles District Office for further processing in accordance with this decision.
BACKGROUND
Complainant worked as an Engineer, ND-0855-04, at the Naval Surface Warfare Center (NSWC), Corona Division, Acquisition and Readiness Assessment Department, Acquisition Assurance Division, Strategic Systems Assessment Branch, in Corona, California. On December 28, 2015, Complainant filed a formal EEO complaint (Complaint Number DON 16-64267-00691) alleging that the Agency discriminated against her on the bases of race (Asian), color (yellow), national origin (Vietnam), sex (female), age (64), disability, and reprisal for prior protected EEO activity when:
(1) on October 17, 2015, her Department Head denied her request for Leave Without Pay (LWOP) and charged her with indefinite Absence Without Leave (AWOL); and
(2) on December 7, 2015, she received a Notice of Proposed Removal2 from her Department Head.
The Agency accepted the complaint for investigation on January 16, 2014, and conducted the investigation from February 29 to May 9, 2016.
By memorandum dated March 9, 2016, the Deputy Technical Director upheld the proposed removal. She stated that Complainant had not complied with a supervisor's request for updated medical information, had not submitted sufficient information to support additional LWOP, and had been informed that she would be charged AWOL for unauthorized absences after October 19, 2015. The memorandum informed Complainant that, if she believed the removal was discriminatory, then she could file an EEO complaint with the Agency's EEO Office or a mixed-case appeal to the Merit Systems Protection Board (MSPB) but could not do both. In addition, the memorandum stated, "Under either procedure, the MSPB will receive your appeal for hearing, if requested, and decision."
In a March 25, 2016, e-mail to the Agency's Deputy EEO Officer, Complainant sought to amend her pending EEO complaint to add two additional claims: that the Agency discriminated against her when it (1) seized her laptop on March 1 and (2) issued a removal decision on March 9, 2016. The Agency processed the request as a separate complaint.
On April 22, 2016, Complainant filed a formal complaint (Complaint Number DON 16-64267-01765) alleging that the Agency discriminated against her on the bases of race (Asian), color (yellow), national origin (Vietnam), sex (female), age (64), disability, and reprisal for prior protected EEO activity when:
(1) on March 1, 2016, without advance notice, Agency officials seized her laptop from Building 509, NSWC Corona Division; and
(2) on March 9, 2016, the Deputy Technical Director issued a removal decision letter as a result of the Department Head's Proposed Removal letter dated December 2, 2015.
The Agency accepted the complaint for investigation on April 28, 2016, and conducted the investigation from July 5 to August 1, 2016.
In the meantime, on June 10, 2016, the Agency provided Complainant with a copy of the Report of Investigation for Complaint Number DON 16-64267-00691. The transmittal memorandum informed Complainant that she could request a final agency decision or a hearing before an EEOC Administrative Judge (AJ). In a June 18, 2016, letter to the Deputy EEO Officer, Complainant asserted that the investigation was inadequate and that the Agency had inappropriately fragmented her two complaints. In a June 23, 2016, response, the Agency found that the matters in the complaints were "like and related," and it granted Complainant's "request to consolidate." It stated that it would process the consolidated complaints as a mixed-case complaint pursuant to 29 C.F.R. � 1614.302, that it would issue a final decision within 45 days of the completion of the investigation into Complaint Number DON 16-64267-01765, and that Complainant could appeal the decision to the MSPB.
Complainant sent a June 26, 2016, letter to the hearings unit of the EEOC Los Angeles District Office requesting a hearing on both complaints. Although it had been fewer than 180 days since Complainant filed Complaint Number DON 16-64267-01765, she nonetheless stated, "I hereby certify that either more than 180 days have passed from the date I filed my complaint or I have received a notice from the agency that I have thirty (30) days to elect a hearing or a final decision." She sent a July 1, 2016, letter to the Agency Deputy EEO Director opposing the consolidation of her complaints and a July 12, 2016, e-mail objecting to some of the EEO Investigator's actions during the investigation of Complaint Number DON 16-64267-01765. The Agency provided Complainant with a copy of the Report of Investigation for "Docket No. DON # 16-64267-01765 (Consolidated)" on August 16, 2016. The transmittal letter stated that Complainant had the right to file an appeal with the MSPB, not the EEOC. In response to an order to produce the complaint file, the Agency submitted both complaint files to the EEOC hearings unit on August 31, 2016. According to documents submitted on appeal, Complainant filed an August 22, 2016, motion to consolidate her complaints for hearing, and the Agency filed an October 18, 2016, opposition to the motion. The hearing request is currently pending in the hearings unit of the EEOC Los Angeles District Office. EEOC Hearing Nos. 480-2016-00749X, 480-2016-00750X.
The Agency issued two final agency decisions (FADs) on January 26, 2017. In both FADs, the Agency stated that it had bifurcated the laptop claim from Complaint Number DON 16-64267-01765 and had consolidated it with the issues in Complaint Number DON 16-64267-00691. In its decision on Complaint Number DON 16-64267-01765, the Agency found that it had not discriminated against Complainant when it removed her from employment. The decision included a Notice of Rights that stated, "In accordance with 29 C.F.R. � 1614.302(d), Complainant may file a Notice of Appeal with the Merit Systems Protection Board (MSPB) at any time up to thirty (30) calendar days after receipt of this decision." The decision did not provide Complainant with appeal rights to the EEOC.
In its decision on Complaint Number DON 16-64267-00691, the Agency stated that it had provided Complainant with a copy of the investigative file and had notified her of her right to request a final agency decision by the Agency or a hearing before an EEOC AJ. According to the decision, Complainant requested a FAD. The Agency found that it had not discriminated against Complainant with respect to the LWOP/AWOL, Notice of Proposed Removal, and laptop claims. The decision included a Notice of Rights informing Complainant that she could appeal the decision to the EEOC.
Complainant appealed both decisions to this Commission.
CONTENTIONS ON APPEAL
On appeal, Complainant, through her non-attorney representative, states that she requested a hearing on Complaint Number DON 16-64267-00691 on June 26, 2016, and that the matter is pending before an EEOC AJ. She argues that the Agency erroneously issued a FAD on that complaint. Complainant further argues that her complaints are firmly enmeshed in the EEO process, that the Notice of Proposed Removal has merged with the removal decision, and that the EEOC has jurisdiction over her removal claim.
In response, the Agency confirms that Complainant's non-mixed claims are pending a hearing. The Agency argues that it properly separated the removal claim from Complainant's other allegations and issued a final decision on the claim.
ANALYSIS AND FINDINGS
Complaint Number DON 16-64267-00691
The record establishes that, after receipt of the Report of Investigation for Complaint Number DON 16-64267-00691, Complainant requested a hearing before an EEOC AJ. The matter is currently pending in the hearings unit of the EEOC Los Angeles District Office. The Agency, therefore, did not have jurisdiction to issue a FAD in this case and did so erroneously. Accordingly, we will vacate the Agency's FAD and remand the complaint to the EEOC Los Angeles District Office for further processing in accordance with the Order below. See Iris D. v. Dep't of Defense, EEOC Appeal No. 0120150246 (Aug. 4, 2016).
Complaint Number DON 16-64267-01765
It is well settled that the Commission may properly assume initial jurisdiction of a mixed-case matter when it becomes so firmly enmeshed in the EEO process that it would unduly delay justice and create unnecessary procedural complications to remand it to the MSPB. See Blount v. Dep't of Homeland Security, EEOC Appeal No. 0720070010 (Oct. 21, 2009); see also Cullors v. Dep't of Veterans Affairs, EEOC Appeal No. 01A41560 (June 27, 2006); Durham v. U.S. Postal Serv., EEOC Appeal No. 01A04957 (July 11, 2002); Richardson v. Dep't of Veterans Affairs, EEOC Appeal Nos. 01982915 and 01984977 (Nov. 5, 2001).
In this case, the removal action is based in part on the AWOL charge that Complainant alleges was discriminatory. Although the Agency notified Complainant of her right to appeal the matter to the MSPB, Complainant nonetheless sought a hearing before an EEOC AJ and appealed the FAD to the Commission. Given the complicated history of this case, and in light of the parties' inconsistent actions (the Agency initially processed Complainant's laptop and removal claims as a separate complaint, then consolidated all claims into a mixed-case complaint, then bifurcated the claims, and then erroneously issued a FAD on the non-mixed claims; Complainant objected to the alleged fragmentation of her claims, erroneously asserted that Complaint Number DON 16-64267-01765 was ready for a hearing, objected to the Agency's consolidation of her complaints, and then asked the AJ to consolidate them), we find that it would better serve the interests of administrative economy to address the removal claim through the EEO process. Under the specific circumstances presented in this case, we find that the removal claim is so firmly enmeshed in the EEO process that a remand to the MSPB would unduly delay justice and create unnecessary procedural complications. Accordingly, we will remand the claim to the EEOC Los Angeles District Office for further processing in accordance with the Order below. We make no determination on the merits of any of Complainant's claims.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the Agency erroneously issued a final agency decision in Complaint Number DON 16-64267-00691 and that the removal claim in Complaint Number DON 16-64267-01765 is firmly enmeshed in the EEO process. Accordingly, we VACATE both final decisions and REMAND all of the claims in Complaints DON 16-64267-00691 and DON 16-64267-01765 to the Agency for further processing in accordance with this decision and the ORDER below.
ORDER
The Agency shall submit to the Hearings Unit of the EEOC Los Angeles District Office a request for a hearing within 15 calendar days of the date this decision is issued. The Agency is directed to submit copies of the complaint files (for Complaints DON 16-64267-00691 and DON 16-64267-01765) to the EEOC Hearings Unit within 15 calendar days of the date this decision is issued. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint files have been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall issue a decision 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 (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (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 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 (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.
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
__4/27/18________________
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 The Notice charged Complainant with being unavailable for duty with no foreseeable end, failure to follow higher-level instruction to submit medical information, and being AWOL since October 19, 2015.
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