U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bernardo C.,1 Petitioner, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Petition No. 2022001067 Agency No. HS-TSA-00727-2021 MSPB No. DC-0752-21-0578-I-1 DECISION On December 19, 2021, Petitioner filed a petition with the Equal Employment Opportunity Commission (EEOC or Commission) asking for review of the final decision issued by the Merit Systems Protection Board (MSPB) concerning his claim of 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, we DENY consideration of the petition and REMAND the matter to the Agency for further processing. BACKGROUND At the time of events giving rise to this complaint, Petitioner worked as a Supervisory Federal Air Marshal, SV-1801-J, at the Agency’s Charlotte Field Office in Charlotte, North Carolina. On February 1, 2021, Petitioner filed a formal EEO complaint, alleging that the Agency discriminated against him on the bases of sex (male), disability, age (over 40), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, the ADEA of 1967, 1 This case has been randomly assigned a pseudonym which will replace Petitioner’s name when the decision is published to non-parties and the Commission’s website. 2022001067 2 Section 501 of the Rehabilitation Act of 1973, and the EPA of 1963 when on December 31, 2020, management constructively discharged him from his position. He also raised several other claims, alleging discrimination when: management refused to talk to him; damaged his vehicle; undermined his authority; and failed to select him for several positions. On February 18, 2021, the Agency issued Petitioner a Notice of Acceptance, accepting Petitioner’s constructive discharge claim for investigation as a mixed case complaint. In issuing the notice, the Agency advised Petitioner that it would address his constructive discharge claim separately from his remaining claims,2 as that claim involved a matter that was appealable to the Merit Systems Protection Board (MSPB). Petitioner, however, objected to the bifurcation of his complaint. Following the EEO investigation, Petitioner requested a final decision on the merits of his complaint. In accordance with Petitioner’s request, the Agency issued a final decision, which concluded that Petitioner failed to prove his claim of constructive discharge. Petitioner subsequently appealed the Agency’s final decision to the MPSB; however, on November 2, 2021, the assigned MPSB Administrative Judge (AJ) issued an initial decision dismissing the matter for lack of jurisdiction. The MSPB AJ’s decision became the final decision of the Board on December 7, 2021. Petitioner then filed the instant petition. ARGUMENTS IN PETITION In his petition, Petitioner reasserts his opposition to the Agency’s decision to bifurcate his complaint. Specifically, Petitioner argues that since his claims collectively constitute a single claim of harassment, the Agency should not have fragmented his claims. He requests that the Commission enter judgment in his favor on the merits of his petition. The Agency opposes the petition and argues that Petitioner’s procedural arguments are without merit. Furthermore, the Agency maintains that the preponderant evidence fails to show that Petitioner had been subjected to discrimination with regard to his constructive discharge claim. ANALYSIS AND FINDINGS EEOC regulations provide that the Commission has jurisdiction over mixed case appeals and complaints on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. § 1614.303 et seq. However, when the MSPB, as it did here, denies jurisdiction, the Commission has held that there is little point in continuing to view the matter as a “mixed case” as defined by 29 C.F.R. § 1614.302(a), because the MSPB did not address any matters within the Commission’s jurisdiction. Therefore, the Commission finds that it has no jurisdiction to review Petitioner’s petition. This matter will be considered a “non-mixed” case and processed accordingly. 2 The Agency processed Petitioner’s remaining claims under Agency No. HS-TSA-00465-2021 which is the subject EEOC Appeal No. 2022001589. 2022001067 3 See generally Schmitt v. Dep’t of Transp., EEOC Appeal No. 01902126 (July 9, 1990); Phillips v. Dep’t of the Army, EEOC Request No. 05900883 (Oct. 12, 1990); 29 C.F.R. § 1614.302(c)(2)(i) and (ii). In accordance with these principles, Petitioner’s request for review is DENIED and Petition No. 2022001067 is hereby administratively closed. MSPB No. DC-0752-21-0578-I-1 is referred to the Agency for further processing as outlined below. CONCLUSION Petitioner is advised by operation of 29 C.F.R. § 1614.302(b) that the Agency, if it has not already done so, is required to process his allegation of discrimination. Because Petitioner filed a mixed case complaint with the Agency, the Agency, pursuant to 29 C.F.R. § 1614.108(f), shall, within thirty (30) calendar days of its receipt of this decision, notify Petitioner of the right to elect between a hearing before an EEOC Administrative Judge or an immediate final decision on her discrimination claim pursuant to 29 C.F.R. § 1614.110. A copy of the notification shall be provided to the Compliance Officer listed below. 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. 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. 2022001067 4 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 CFR § 1614.503(f) for enforcement by that agency. PETITIONER’S RIGHT TO FILE A CIVIL ACTION (W0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of 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. 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 Petitioner’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 February 2, 2022 Date
