[Redacted], Beverly C., 1 Complainant,v.Debra A. Haaland, Secretary, Department of the Interior (Bureau of Land Management), Agency.Download PDFEqual Employment Opportunity CommissionMay 19, 2021Appeal No. 2021001739 (E.E.O.C. May. 19, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Beverly C.,1 Complainant, v. Debra A. Haaland, Secretary, Department of the Interior (Bureau of Land Management), Agency. Appeal No. 2021001739 Agency No. DOI-BLM-20-0393 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated November 25, 2020, dismissing a formal complaint alleging unlawful 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. BACKGROUND During the period at issue, Complainant worked as a Planning and Environment Coordinator, GS-12, at the Agency’s facility in Carlsbad, New Mexico. On July 8, 2020, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on race, color, and disability. In its final decision dated November 25, 2020, the Agency determined that the formal complaint was comprised of the following claims: 1. On May 30, 2018, First Level Supervisor had local law enforcement remove Complainant from the premises. 2. On April 23, 2019, District Manager issued Complainant a removal letter. 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. 2021001739 2 3. Complainant applied to over 250 jobs, but was continuously denied employment because her Notification of Personnel Action (SF-50) effective May 1, 2019, included information which was detrimental and inaccurate to her reputation.2 Complainant’s most recent denial was July 2, 2020. The Agency dismissed claims (1) - (3) for untimely EEO Counselor contact. The Agency reasoned that Complainant initiated EEO contact on May 1, 2020, outside of the applicable time period for the alleged incidents. The Agency also dismissed claim (2),regarding her removal, for previously filing an appeal with the Merits Systems Protection Board (MSPB). The Agency reasoned that Complainant filed an appeal with the MSPB on May 30, 2019, prior to the instant formal EEO complaint filed on July 8, 2020. The instant appeal followed. On appeal, Complainant does not submit a statement or brief in support of her appeal. ANALYSIS AND FINDINGS Claim (2)-Removal A “mixed” case is a complaint of employment discrimination filed with a federal agency, related to or stemming from an action that can be appealed to the MSPB. 29 C.F.R. § 1614.302(a)(1). An aggrieved person may initially file a mixed case complaint with an agency or may file a mixed case appeal directly with the MSPB, pursuant to 5 C.F.R. § 1201.151, but not both. 29 C.F.R. § 1614.302(b). EEOC Regulation 29 C.F.R. § 1614.107(a)(4) provides that an agency shall dismiss a complaint where the complainant has raised the matter in an appeal to the MSPB and 29 C.F.R. § 1614.302 indicates that a complainant has elected to pursue the non - EEO process. The Agency improperly dismissed claim (2) on the grounds that Complainant previously filed an appeal with the MSPB on May 30, 2019. When a complainant files a mixed-case appeal with the MSPB and it is dismissed on jurisdictional grounds, the agency is required to promptly notify the complainant, in writing, of the right to contact an EEO Counselor and to file an EEO complaint. See 29 C.F.R. §1614.302(b). When there is a mixed-case appeal, the date on which a complainant filed the appeal with the MSPB shall be deemed to be the date of initial contact with the EEO Counselor. See Bell v. Dep't of Defense, EEOC Request No. 05940741 (Jan. 6, 1995). The record reflects that Complainant previously filed an appeal with MSPB. The record contains a copy of an MSPB Initial decision dated July 12, 2019. 2 The Notification of Personnel Action Form provides, in pertinent part, that Complainant “resigned after receiving written notice on [April 23, 2019] of decision to separate for excessive AWOL.” 2021001739 3 MSPB Docket No. DE-0752-19-0314-I-1. According to the MSPB decision, Complainant filed a document with the MSPB seeking to appeal her termination (constructive discharge) on May 30, 2019, which the MSPB found deficient. The MSPB provided Complainant an opportunity to refile her appeal, which she did on June 17, 2019. Id. It appears that Complainant raised an allegation of discrimination in her MSPB appeal as the MSPB AJ sets forth, “I ordered the appellant to provide more information about her [EEO claims] by June 28, 2019…the appellant filed no response…” Id. Based on the foregoing, we find that Complainant raised an allegation of discrimination in her MSPB appeal of her termination (constructive discharge). The MSPB AJ ultimately dismissed Complainant’s appeal for lack of jurisdiction. Id. Thus, the Agency should have notified Complainant in writing of her right to contact an EEO Counselor within 45 days of receipt of the notice and file an EEO complaint. 29 C.F.R. § 1614.302(b). However, the record is devoid of evidence that the Agency, subsequent to the MSPB decision, notified Complainant, in writing, of her right to contact an EEO Counselor. Based on the foregoing, we find that the Agency improperly dismissed claim (2) for Complainant previously filing an MSPB appeal on this matter. We further find that the Agency improperly dismissed claim (2) for untimely EEO Counselor contact. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty- five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. As set forth above, the MSPB dismissed Complainant’s appeal for lack of jurisdiction. Thus, the date on which Complainant filed her appeal with the MSPB shall be deemed the date of initial contact with an EEO Counselor. 29 C.F.R. § 1614.302(b). According to the MSPB’s decision, Complainant filed an appeal on May 30, 2019, which the MSPB found deficient and allowed her to refile, which she did on June 17, 2019. The record contains a copy of a Notification of Personnel Action Form indicating the effective date of Complainant’s resignation/termination was May 1, 2019. Thus, Complainant should have initiated EEO contact no later than June 17, 2019.3 Based on the foregoing, we find that Complainant timely initiated EEO contact with respect to claim (2). 3 Forty-five days after May 1, 2019 is June 15, 2019, which is a Saturday. Thus, the deadline is extended to the next business day, June 17, 2019. 29 C.F.R. § 1614.604(d). 2021001739 4 Claim (1)-Removal from Work Facility by Law Enforcement The Agency properly dismissed claim (1) for untimely EEO Counselor contact. As noted above, EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the EEO counselor within forty-five (45) days of the date of the matter alleged to be discriminatory. Here, Complainant alleged she was removed from Agency premises by law enforcement at the behest of Agency management on May 30, 2018. However, she did not initiate contact with an EEO counselor about the matter until May 1, 2020, well beyond the 45-day limitation period. Even if assuming this claim is inextricably intertwined with her removal claim, we have deemed that contact to have occurred on May 20, 2019 (the date she filed her appeal with the MSPB), one year after the incident in questions and still well beyond the 45-day limitation period. Claim (3) The Agency improperly dismissed claim (3) for untimely EEO Counselor contact. Upon review of the record, we find that Complainant is alleging that on an ongoing basis following the termination, the Agency has continuously provided inaccurate information to prospective employers who are conducting reference checks on Complainant. Specifically, Complainant, in an attachment to the formal complaint, states, “I have applied to over 250 jobs since termination…I am continuously denied the positions I apply for. The most recent subsequent denial was July 2, 2020.” Complainant asserts that the references were contacted. Based on the foregoing, we find that the Agency’s alleged action (providing inaccurate information to Complainant’s prospective employers) was ongoing up until Complainant initiated EEO contact on May 1, 2020. For the reasons set forth herein, we REVERSE the Agency’s final decision dismissing Complainant’s claims 2 and 3, and we REMAND this matter to the Agency for further processing in accordance with the Order below. ORDER (E0618) The Agency is ordered to process the remanded claims (claims 2 and 3) in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a 2021001739 5 hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. 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. 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. 2021001739 6 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). 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. 2021001739 7 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 May 19, 2021 Date Copy with citationCopy as parenthetical citation