[Redacted], Belkis D., 1 Complainant,v.Thomas W. Harker, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Mar 2, 2021

Appeal No. 2021000093 (E.E.O.C. Mar. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Belkis D.,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Appeal No. 2021000093 Agency No. ARCARSON19APR01176 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated September 8, 2020, dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Health System Specialist at the Agency’s Evans Army Community Hospital facility in Fort Carson, Colorado. On June 1, 2019, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of disability when: 1. Between September 2018 and March 2019, CPT B and VM made condescending remarks about the Complainant, discussed her medical condition without her permission, withheld information on the reasonable accommodation program, departmental leave policy/procedures, and Family Medical Leave Act (FMLA). 2. In November 2018, the Complainant was forced to request special pay, in December 2018, the Complainant’s timecard was not submitted causing her to not 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. 2021000093 2 get paid on time and she was marked absent without leave when she was present for duty in December 2018 and February 2019. 3. CPT B issue Complainant a Notice of Proposed Termination, dated February 3, 2019 and SF made unnecessary comments about the reason behind Complainant’s leave usage on February 27, 2019. 4. Complainant was issued a Notice of Decision on Proposed Removal by SF, dated March 19, 2019, effective date of removal was March 25, 2019. The Agency dismissed the complaint because Complainant appealed her removal before the Merit Systems Protection Board (MSPB). The instant appeal followed without substantive comment. ANALYSIS AND FINDINGS A mixed case complaint is a complaint of employment discrimination filed with a federal agency based on race, color, religion, sex, national origin, age, disability, or genetic information related to or stemming from an action that can be appealed to the MSPB. 29 C.F.R. § 1614.302(a)(1). A Complainant may pursue a mixed case complaint with the Agency or an appeal on the same matter with the MSPB, but not both. 29 C.F.R. § 1614.302(b). Additionally, 29 C.F.R. § 1614.107(a)(4) allows for the dismissal of complaints where a Complainant has raised the same matter in an appeal to the MSPB and has indicated that she has elected to pursue the non-EEO process. In the instant case, it is clear that Complainant appealed her removal to the MSPB, identified as MSPB Docket No. DE-0752-20-0185-I-1. Complainant filed her appeal to the MSPB on March 4, 2020, and the MSPB found the appeal timely. The MSPB issued an Initial Decision on June 9, 2020, wherein Complainant’s removal was upheld and the MSPB Administrative Judge (AJ) found that Complainant was not discriminated against as alleged. In the decision the MSPB AJ went over Complainant’s leave usage in detail and noted that Complainant was not a credible witness. We find that the claims in the instant EEO complaint are inextricably intertwined with her MSPB appeal where her discrimination claims have already been adjudicated.2 Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. 2 Under 29 C.F.R. § 1614.303, Complainant is entitled to appeal a final decision from the MSPB on a mixed case appeal to this Commission. 2021000093 3 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). 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). 2021000093 4 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 March 2, 2021 Date