[Redacted], Andera P., 1 Complainant,v.Janet L. Yellen, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity Commission

Oct 12, 2022

Appeal No. 2022002904 (E.E.O.C. Oct. 12, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Andera P.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury, Agency. Appeal No. 2022002904 Agency No. DO-21-0175-F DECISION 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 decision dated April 13, 2022, dismissing her 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRM in part, and REMANDS in part, the Agency’s dismissal. At the time of events giving rise to this complaint, Complainant worked as Program Manager at the Agency’s facility in Washington, DC. On February 8, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), sex (female), disability (mental), and reprisal for prior protected EEO activity when: 1. on September 21, 2020, Complainant was placed on a 90-day Performance Improvement Plan (PIP); 2. on December 22, 2020, Complainant was notified that her performance rating was Unacceptable; and 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. 2022002904 2 3. on January 26, 2020, Complainant was issued a proposed removal. On April 6, 2021, Complainant filed an appeal with the Merit Systems Protection Board (MSPB) concerning her removal from the Agency. The MSPB accepted jurisdiction of the matter. On November 2-4, 2021, a MSPB hearing was held. On May 5, 2021, Complainant elected to have an EEOC hearing. On February 24, 2022, the EEOC Administrative Judge (AJ) issued an Order of Dismissal wherein the matter was dismissed and remanded to the Agency for a final decision pursuant to Complainant’s hearing request withdrawal. On March 24, 2022, the MSPB issued an initial decision which addressed Complainant’s removal. On April 13, 2022, the Agency issued its final decision. The Agency stated that Complainant moved between the Agency EEO and the MSPB processes for over a year regarding substantially the same claims. The Agency asserted that the MSPB’s March 24, 2022, decision addressed the merits of Complainant’s EEO complaint. Accordingly, the Agency dismissed the complaint for raising the matters at issue in the MSPB process pursuant to 29 C.F.R. 1614.107(a)(1) and 29 C.F.R. 1614.107(a)(4). CONTENTIONS ON APPEAL On appeal, Complainant requests that the Agency’s final decision be reversed. Complainant asserts that the MSPB’s initial decision does not render her complaint moot, and that the dismissal was improper. Complainant also notes that the complaints were not identical as her MSPB complaint dealt with her termination and the EEO complaint dealt with the proposed termination. Complainant also notes that she filed a Petition for Review concerning her MSPB decision and is requesting that the Commission consolidate the instant appeal with her MSPB Petition for Review. The Agency reiterates that the dismissal was appropriate as the MPSB decision addressed Complainant’s EEO concerns. ANALYSIS AND FINDINGS Consolidation The Commission may, in its discretion, consolidate two or more complaints of discrimination filed by the same complainant. EEOC Regulation 29 C.F.R. § 1614.606. However, Complainant’s request to combine her instant appeal along with her MSPB Petition for Review are not appropriate and will not be consolidated. 2022002904 3 Mixed Case Complaint EEOC Regulation 29 C.F.R. § 1614.107(a)(4) requires the dismissal of an EEO complaint where the complainant has filed an appeal with the MSPB. EEOC Regulation 29 C.F.R. §1614.302(b) states that an aggrieved person may initially file a mixed case complaint with an agency or an appeal on the same matter with the MSPB, but not both. We note that dismissal pursuant to 29 C.F.R. § 1614.107(a)(4) cannot be based on a similar matter but rather the same matter and the record does not indicate that here for claims 1 and 2. While claims 1 and 2 are associated with claim 3, those claims were not specifically before the MSPB. Accordingly, the dismissal of claims 1 and 2 are reversed. Regarding claim 3, Complainant filed an appeal with the MSPB regarding her actual removal. Because a proposed removal merges into a decision to remove, the matter was appropriately dismissed by the Agency under the above regulations. Roscoe P. v. Dep’t. of the Interior, EEOC Appeal No. 0120152937 (Nov. 9, 2017). CONCLUSION Accordingly, the Agency's final decision is modified and the dismissal of claim 3 is AFFIRMED, while claims 1 and 2 are REMANDED for processing in accordance with the ORDER below. ORDER The Agency is ordered to process the remanded claims, namely claims 1 and 2. The Agency shall issue to Complainant a final Agency decision regarding claims 1 and 2 and shall also notify Complainant of the appropriate rights within ninety (90) calendar days of the date this decision was issued in accordance with 29 C.F.R. § 1614.110. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. 2022002904 4 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 2022002904 5 Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. 2022002904 6 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 October 12, 2022 Date