0120160862
05-14-2018
Nelson R.,1 Complainant, v. Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Nelson R.,1
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120160862
Agency No. 201425828FAA04
DECISION
On December 16, 2015, 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 November 19, 2015 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Air Traffic Manager at the Agency's Willow Run Air Traffic Control Tower in Belleville, Michigan.
On December 1, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), and reprisal for prior protected EEO activity when, in May 2014, he received a notice of demotion.
The Agency accepted the complaint and conducted an investigation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and
notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing.
On August 11, 2015, the EEOC AJ issued an order dismissing the hearing request, concluding that a review of the Report of Investigation revealed that Complainant's complaint is a "mixed case complaint" over which the Merit Systems Protection Board (MSPB) has jurisdiction. The AJ remanded the complaint back to the Agency to continue processing as a mixed case complaint.
The Agency received a copy of the AJ's order on August 12, 2015. On September 17, 2015, the Agency emailed both the Complainant's Representative and the AJ seeking her assistance regarding the order. The AJ responded stating that the Agency, "was in error for providing the complainant election rights for a hearing."
On November 19, 2015, the Agency issued a final decision to Complainant. However, rather than addressing the merits of his complaint, the Agency advised Complainant that it was "administratively closing" his complaint pursuant to "Title 29, Code of Federal Regulations, Part 1614.107(a)(7)." The Agency further provided Complainant the following appeal rights:
If you are dissatisfied with this final agency decision, you have the following appeal rights:
Within 30-calendar days of your receipt of this final decision, you have the right to appeal this decision to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013.
Complainant filed the instant appeal with EEOC.
CONTENTIONS ON APPEAL
Complainant contends that the Agency improperly administered the complaint process and misinformed Complainant and his representative of the correct entity with whom to request a hearing.
ANALYSIS AND FINDINGS
The Commission's regulations at 29 C.F.R. � 1614.302 explain that a mixed case complaint is a complaint of employment discrimination stemming from an action that can be appealed to the Merit Systems Protection Board (MSPB). Section 1614.302(d) provides the procedures for agency processing of mixed case complaints. In relevant part, these procedures require that the agency, after completing an investigation into the complaint, issue a final decision and advise the complainant of his/her right to appeal the matter to the MSPB, not the EEOC. Under this scheme, the complainant is not offered a hearing before an EEOC AJ, but rather is provided a hearing before the MSPB if he/she appeals to the MSPB from the Agency's final decision.
Here, following its investigation into Complainant's claim of discrimination, the Agency incorrectly provided Complainant with a right to request a hearing before an EEOC AJ. However, because the discrimination claim concerned a demotion, the EEOC AJ correctly recognized this as a mixed case complaint and dismissed the EEOC hearing request and remanded the complaint back to the Agency for appropriate processing.
Rather than issuing a final decision on the merits of the complaint based on the evidence developed during the investigation, the Agency erred by "administratively closed" the complaint. Further, the Agency incorrectly gave Complainant appeal rights to EEOC. As a result, Complainant has been deprived of any adjudication of the merits of his discrimination claim, including his right to a hearing.
Accordingly, we REVERSE the Agency's November 19, 2015 final decision and REMAND the matter back to the Agency for proper processing pursuant to the procedures delineated in 29 C.F.R. � 1614.302 and the Order set forth below.
ORDER
Within 30 calendar days of the date this decision is issued, the Agency shall issue a final decision on the merits of Complainant's complaint based on the evidence developed during the investigation. In that decision, the Agency shall give Complainant appeal rights to the Merit Systems Protection Board (not EEOC), pursuant to the procedures in 29 C.F.R. � 1614.302.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include a copy of the documentation implementing this Order.
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
__5/14/18________________
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.
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